The Orphan (or Hostage) Works Problem

Paul Keller effectively explains 'the orphan works problem'. He gives an in-depth analysis of both the proposed EU and UK government solutions, and their strengths and failings.

Image: CC-BY-NC-SA 2.0 Flickr: jbhapler

The European Union is currently finalizing a directive on the mutual recognition of orphan works. Last week the UK government expressed their intention to improve copyright licensing in order to address the orphan works problem. So what exactly are orphan works, and what is the problem they present?

One of the most fundamental principles of copyright (law) is that authors (and other right-holders) of copyrighted works have the exclusive right to determine if and how their works may be used by others. Copyright covers both the making of copies of a work, as well as the making available (publishing) of protected works. If you want to make use of a work that is protected by copyright you need to have permission to do so from the right holder(s).

This system works relatively well as long as anyone who wants to make use of a copyrighted work is able to get in touch with the right-holder(s) of that work. However, there are situations where right-holder(s) cannot be identified or if they can be identified they cannot be located and as a result they cannot be asked for permission to make use of their works. These works are called ‘orphan works’ (some people argue that the term is misleading and that they should be called hostage works instead).

Orphan works represent a relatively new problem (the term was first used in 1999) that is primarily affecting memory institutions (libraries, archives and museums) that want to digitize their collections. Large parts of their collections (some estimates are as high as 60%) consist of works without known right holders or right holders who cannot be found. As a result these institutions cannot obtain permission to digitize these works (as this involves making a copy) and to make them available online. This severely hampers these institutions in their quest to provide online access to their collections.

The reasons for the presence of orphan works in the collections of heritage institutions are manifold, but are rooted in two facts: the extremely long duration of copyright that can easily exceed 100 years after the first publications of a work, and the lack of a registration system for copyrighted works. Add to this the fact that copyright can get transferred from the original creator to others (such as publishers), that corporate owners of copyrights can cease to exist or merge, that individual creators tend to move places change names and professions and that many works (such as photographs) do not contain information about the right-holders and you get an idea of the scope of the problem.

Given all of the above, the orphan works problem is one of the most clear-cut illustrations of the fact that the copyright system needs to be adjusted to the digital age. The fact that orphan works cannot be legally used benefits no-one while it imposes substantial harm on society as a whole. In its recent  Government Policy Statement the UK Government puts it like this:

The Government’s position […] is that it benefits no-one to have a wealth of copyright works be entirely unusable under any circumstances because the owner of one or more rights in the work cannot be contacted. This is not simply a cultural issue; it is also a very real economic issue that potentially valuable intangible assets are not being used […].

So how can this problem be resolved? We can identify at least three different approaches to the problem that are currently being discussed:

1. The first one is based on the principle of 'diligent search'. In this approach (as exemplified by the proposed EU directive on orphan works and the proposal by the UK government) a person or institution that wants to make use of an orphan work needs to show that a 'diligent search' for the rights holder has been carried out and that they have failed to locate a rights-holder (what exactly constitutes a 'diligent' search has to be defined by law or regulation). Once this has been established the work can be used under certain conditions (these can either be implemented in the form of an exception to copyright, as proposed by the EU directive, or in the form of a license, as proposed by the UK government) and may or may not include payment of a fee.

On the positive side this approach guarantees that efforts to locate the rights’ holders have been made. On the negative, this approach imposes quite a substantial burden on potential users, especially if the requirements for a diligent search are high. Given the size of many collections memory institutions have argued that a requirement to perform a diligent search for each individual work does not provide a solution for mass digitization projects and will only be useful for small scale digitization efforts.

2. The second approach is called 'Extended Collective Licensing'. This approach, which hails from the Scandinavian countries but has also been included in the UK Government’s proposal, relies on collective rights management organizations (such as ACLS). The idea is to extend their mandate to allow them to, not only license the use of their member’s works, but also of all similar works (for example all fiction books). This would mean that a collecting society could issue a license that allows a memory institutions to use all works of a certain type (including all orphans). The collecting society would collect licensing fees for all works and would undertake efforts to identify and reimburse unidentified rights holders.

On the positive side this approach makes it very straightforward for memory institutions to obtain permission for the use of orphan works (they would be included in the extended license for the category of works) as it shifts the burden for identifying and locating right-holders onto the collecting societies. This approach relies on the existence of well-managed collecting societies that represent a substantial part of the right holders for a certain category of works. Currently this is not the case for many categories of works (such as audiovisual works). In addition, it is extremely difficult to determine fail licensing fees for the use of orphan works by memory institutions.

3. Another approach would be a general exception to copyright that would allow memory institutions to use all works in their collections online for non-commercial purposes. Such an exception would be conditional on some form of  statutory remuneration scheme (i.e the works can be used as long as a remuneration is being paid). This would effectively allow memory institutions to develop online access to their collections without having to obtain permission from rights holders and would apply to orphan works and works with known right holders alike.

On the positive side this approach would ensure that memory institutions can effectively operate in the digital realm. Statutory remuneration schemes are a substantial limitation of the exclusive rights of authors, but they have been effectively used in other contexts in the past (for example, to allow radio stations to broadcast music without having to obtain individual permissions for each individual song). Such a scheme would most likely be more problematic in cases where memory institutions hold works that are still available commercially and therefore it should probably only be applied to works that are not available commercially anymore.

While current policy initiatives on the European and British level seem to focus on the first option, it is important to realize that there are more options and that these options will most likely be more effective in making orphan works available to the public. While the discussion on the European level seems to be over for now it is encouraging to see that the UK government, while it clearly favors the diligent search approach, also provides room for experimentation with Extended Collective Licensing.

Finally, this orphan works problem also makes it obvious that we need to address the underlying problems that have gotten us into this mess. In a situation where millions of copyrighted works are created every day that often do not require any protection or have a very short economic life after which the need for protection stops, a system that automatically grants copyright which lasts for decades does not make sense anymore. Copyright needs to be made more flexible so that it applies only where it is wanted and or necessary. One suggestion for achieving this can be found in this recommendation made by the COMMUNIA association:

In order to prevent unnecessary and unwanted protection of works of authorship, full copyright protection should only be granted to works that have been registered by their authors. Non registered works should only get moral rights protection.

 

Paul Keller is copyright policy advisor and vice-chair of Kennisland <www.kennisland.nl/en/>, an Amsterdam based think tank dealing with issues related to the knowledge society. Paul has worked extensively on copyright related questions of mass digitization projects, is one of the founders of the COMMUNIA association <www.communia-association.org> that advocates for a strong public domain in the digital environment.

twitter: @paul_keller