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The British Library have produced several specific examples of orphan works problems and asked Stop43 how they should be solved:

"This paper describes some typical scenarios faced by museums, archives, libraries and galleries as part of its photographic digitisation activities. They are based on real projects undertaken by cultural institutions so therefore represent key issues of rights clearance and representation.

The projects below would be a combination of free on the web, resale in digital and paper form and use by a library, museum or archive on their website but accessible through links by
Europeana which will be partly privately and publicly funded in the future. Europeana may also seek to archive such copies."

According to the European Federation of Journalists in their September 2010 Newsletter, a digitalisation (sic) project in the UK found that 90% of the estimated 17 million photographs in UK museums are considered to be orphan works.

The Newletter also states that:

  • a high number of orphan works are from the newspaper, photography, and movie industries;
  • a report on the "Assessment of the orphan works issue and costs for rights clearance" published by DG Information Society and Media of the European Commission shows that most cultural institutions in Europe are unwilling to pay for the use of orphan works;
  • While the Commission said that clearing rights of all orphan works will be too costly and slow, the EFJ believes that authors would be further exploited if procedures for rights clearance were omitted.

STOP43 GENERAL RECOMMENDATIONS

  • The British Library should join The National Cultural Archive as an authorised and regulated affiliate.

  • Custodians of orphan works should be free to digitise all of their IP held on traditional media for the purposes of conserving, cataloguing and preserving it, as recommended by the Gowers Review of Intellectual Property. This should be enacted as a Permitted Act, not an exception to copyright. The resultant digital facsimiles are to have status and custodial metadata applied to them and be submitted to The National Cultural Archive Metadata Registry as they are created. In this way the requirement, cost and complexity of "diligent search" will be entirely avoided.

  • A revokable statutory license for Cultural Use should be granted to The National Cultural Archive, to enable the public to view and make Cultural Use of all appropriate digital orphan works.

  • Following the user-generated content examples set by Wikipedia and FreeDB, among others, the task of entering all known metadata for individual orphan works should be crowd-sourced to registered contributors and editors, which will have the additional advantage of making them available for their rights-holders to find and readopt. This will drastically reduce the cost and workload for the British Library of entering metadata into orphan image files and substantially increase the works' scholarly and historical value. It will also de-orphan a proportion of the British Library's total orphan works collection and potentially make it available for commercial licensing.

  • Re-adoptive rights-holders should be invited (but not obliged) to enter into profit-sharing agreements with the British Library, or appoint it as their commercial stock library in the same way that many photographers submit their work to Alamy. This will create a new, legal revenue stream for the British Library to use in offsetting the cost of mass digitisation. Uses and License fee levels are to conform with National Cultural Archive guidelines.
Our general recommendations permit digitisation in every one of these five scenarios and free, online Cultural Use of the resulting digital facsimiles if, based on picture content, such use is deemed appropriate. The exception is the film containing embedded orphan photographs. The appropriateness or not of Cultural Use made of this film is for film-makers and their rights-holders to decide, not photographers.

  • Scenario 1 – Historical family albums (800 items)
    A museum receives by way of donation an album of photographs from an expatriate English family living in India during the early and mid 20th century. The identities of the family members are not known but there is evidence it was a family who worked on the railways – captions on the photographs mention places and occasionally first names but the photographers’ name(s) is not recorded. These pictures are to be added to a digitised collection depicting British life during the final days of the British Empire.

    Our General Recommendations permit digitisation of these photographs and "free use on the web" of the digital facsimiles for Cultural Use when registered in The National Cultural Archive Metadata Registry and displayed by a National Cultural Archive affiliate in conformance with The National Cultural Archive's Code of Practice.

    On obtaining authorised National Cultural Archive affiliate status, Europeana will be equally free to make Cultural Use of these digital facsimiles in conformance with The National Cultural Archive's Code of Practice and make them publicly available online to IP addresses geographically located in those legal jurisdictions in which Cultural Use as defined and permitted by our proposed revokable statutory license does not conflict with local copyright law.

    "Resale in digital and paper form" are Commercial Uses and will not be permitted while the works retain orphan status. Should the works be readopted by their rights-holders or their successors, those rights-holders will be able to grant the British Library permission to use these works for "resale in digital and paper form" and should be given the opportunity to appoint the British Library as their representative agent for this purpose.

    This scenario appears to concern previously unpublished work not made for publication. If, on re-adoption, its rights-holders no longer wish the works to be made public they must be removed from the National Cultural Archive and no public online use made of them by anyone until their terms of copyright expire.
  • Scenario 2 – World War I archive ( 6000 items)
    An archive receives private funding to digitise some of its collection of photographs from the First World War to support a series of exhibitions, books, posters and events commemorating the event. These involve official photographs of high ranking officers to informal pictures of Soldiers in the trenches, as well as photographs in trench journals. Some of the officers pictured are named and there are occasionally notes regarding the identities of some of the soldiers and/or their regiments. It seems likely that some of the photos would have passed into the public domain but this cannot be determined for the vast majority.

    Our General Recommendations permit digitisation of these photographs and use in free online exhibitions and events of the digital facsimiles for Cultural Use when registered in The National Cultural Archive Metadata Registry and displayed by a National Cultural Archive affiliate in conformance with The National Cultural Archive's Code of Practice. We know that the people depicted in these photographs are all dead, obviating privacy concerns.

    On obtaining authorised National Cultural Archive affiliate status, Europeana will be equally free to make Cultural Use of these digital facsimiles in conformance with The National Cultural Archive's Code of Practice and make them publicly available online to IP addresses geographically located in those legal jurisdictions in which Cultural Use as defined and permitted by our proposed revokable statutory license does not conflict with local copyright law.

    Use in books and posters are Commercial Uses and will not be permitted while the works retain orphan status, and equivalent licensable works must be used for these purposes. Should the works be readopted by their rights-holders or their successors, those rights-holders will be able to grant the British Library permission to use these works for these purposes and should be given the opportunity to appoint the British Library as their representative agent for this purpose. Do not forget that The National Cultural Archive will facilitate the de-orphaning of works in general and perhaps some of these works in particular, potentially making them available for Commercial Use.

    The fact that private funding has been used to pay for some of the digitisation changes none of the above. The provision of private funds for digitisation purposes does not quid pro quo grant the provider rights to any form of commercial use. Those rights are the property of the works' rights-holders for the full term of copyright in the works. Private funding for digitisation of orphan works must not be sought or offered on the understanding that the resultant digital facsimiles will be available for Commercial Use.

    Uncertainty over the public domain status of some of the works is not an excuse to regard the entire collection as Public Domain and therefore fit for Commercial Use. An orphan work must not be deemed to be Public Domain unless the chances of it still being in copyright are extremely remote.

    Given the circumstances of its photography this collection is likely to contain Crown Copyright works, privately-commissioned portraits and newspaper-commissioned works alongside private work. Any Crown Copyright in this work will expire in 2043, unless it was commercially published before 1993, in which case it will expire 50 years after the date of publication.

    The average life expectancy for babies born in 1900 was 45 years for men and 48 years for women. There are only two surviving veterans of the First World War. Both are aged 110 and have lived for more than double their average life expectancy. It is reasonable to assume that the chances of a substantial number of survivors beyond 2x average life expectancy are low, although the Office for National Statistics could probably make a more accurate estimate.

    If an unknown First World War photographer was born in 1900 and his work is not Crown Copyright it is probable that his work will enter the public domain in 2015 and extremely likely by 2060. Of course, this is only relevant to Commercial Use of these works. None of it is relevant to online Cultural Use of the works, which The National Cultural Archive would facilitate as soon as our recommended legislative changes have been made.

    LINKS

    http://en.wikipedia.org/wiki/List_of_surviving_veterans_of_World_War_I
    http://www.copyrightservice.co.uk/copyright/p01_uk_copyright_law
    http://www.schoolhistory.co.uk/year9links/industrial/population.pdf
    http://www.statistics.gov.uk/cci/nugget.asp?id=168
  • Scenario 3 – Ethnographic material (2000)
    A Library receives a donated collection including - along with interviews, plays and poems - photographs of scenes from traditional African ceremonies and events surrounding liberation and independence after the Second World War. The material is unpublished and of great value to an upcoming exhibition on the development of post-colonial Africa (accompanied by a book) but the photographers are unknown (the donated material included very few details on its provenance).

    This work is unpublished. If it consists of private diaries or images whose contents might breach the human or legal rights of living persons depicted in them, it may not be appropriate to make them publicly available for Cultural Use. If the donated material includes "very few details of its provenance" and therefore cannot be accurately dated and placed it is liable to use in a misrepresentative way, degrading its historical and scholarly value.

    Our General Recommendations permit digitisation of these photographs. Their inclusion in a free online form of that exhibition is a "Cultural Use" so long as their display pages contains no advertising or sponsorship messages, logos or links when registered in The National Cultural Archive Metadata Registry and displayed by a National Cultural Archive affiliate in conformance with The National Cultural Archive's Code of Practice, If the images are appropriate for public display and their use does not misrepresent.

    On obtaining authorised National Cultural Archive affiliate status, Europeana will be equally free to make Cultural Use of these digital facsimiles in conformance with The National Cultural Archive's Code of Practice and make them publicly available online to IP addresses geographically located in those legal jurisdictions in which Cultural Use as defined and permitted by our proposed revokable statutory license does not conflict with local copyright law, if the nature of the work makes it appropriate to display it publicly.

    "Publishing in a book" is a Commercial Use and will not be permitted while the works retain orphan status. Should the works be readopted by their rights-holders or their successors, those rights-holders will be able to grant the British Library permission to use these works for publication in a book of the proposed exhibition and should be given the opportunity to appoint the British Library as their representative agent for this purpose.
  • Scenario 4 – Published photographs of early popular music (800)
    An online exhibition highlighting the growth of post-war popular music in Britain is looking to use photographs of musicians and audiences from the 1940s, originally published in a weekly music magazine. The photographers are named but are not members of DACS and the publishers do not have any contact details or further information regarding the photographers. The publisher states that they do not hold the copyright in the images. The picture library would also like to sell the images of the magazine pages in their picture library for which the gallery has permission from the publisher for the text.

    Our General Recommendations permit digitisation of these photographs and "free use on the web" of the digital facsimiles for Cultural Use when registered in The National Cultural Archive Metadata Registry and displayed by a National Cultural Archive affiliate in conformance with The National Cultural Archive's Code of Practice. Some of the images may not be suitable for public display.

    On obtaining authorised National Cultural Archive affiliate status, Europeana will be equally free to make Cultural Use of these digital facsimiles in conformance with The National Cultural Archive's Code of Practice and make them publicly available online to IP addresses geographically located in those legal jurisdictions in which Cultural Use as defined and permitted by our proposed revokable statutory license does not conflict with local copyright law, if the nature of the work makes it appropriate to display it publicly.

    Their inclusion in a free online form of that exhibition is a "Cultural Use" so long as their display pages contains no advertising or sponsorship messages, logos or links. If the exhibition is "paywalled", that is a Commercial Use and will not be permitted while the works retain orphan status. Should the works be readopted by their rights-holders or their successors, those rights-holders will be able to grant the British Library permission to use these works in a paywalled exhibition and should be given the opportunity to appoint the British Library as their representative agent for this purpose.

    The picture library might very well "like to sell the images of the magazine pages in their picture library for which the gallery has permission from the publisher for the text", but this is a Commercial Use not permitted while the works retain orphan status. Let us not forget that such commercial use is not required to allow the public access to view these photographs and put them to Cultural Use.

    Should the works be readopted by their rights-holders or their successors, those rights-holders will be in a position to grant the picture library permission to use these works for this purpose if they so wish.

    LINKS

    http://en.wikipedia.org/wiki/Paywall
  • Scenario 5 – A film
    The archive has an hour-long BBC documentary on 14 artists from the Sunderland region in the 1950s and early 1960s. The film rights have been cleared as have some of the artists works directly or through the DACs. There is one photographer whose descendants cannot be located (it is known he died in 1986) whose works appear in the documentary – this is in spite of a newspaper advert in a local newspaper in addition to contacting various photographic organisations and DACs.

    Cultural Use as a concept must be respectful of the different value chains, Further Uses and End Uses to which digital IP is put. One size does not fit all, and what might be appropriate for a still photograph is not necessarily appropriate when that photograph is embedded in a film.

    Our General Recommendations permit digitisation of this film and "free use on the web" of the digital facsimile for Cultural Use when registered in The National Cultural Archive Metadata Registry and displayed by a National Cultural Archive affiliate in conformance with The National Cultural Archive's Code of Practice, if film-makers and their rights-holders agree that it is not harmful to them to make Cultural Use of their work in this way.

    On obtaining authorised National Cultural Archive affiliate status, Europeana will be equally free to make Cultural Use of the digital facsimile in conformance with The National Cultural Archive's Code of Practice and make it publicly available online to IP addresses geographically located in those legal jurisdictions in which Cultural Use as defined and permitted by our proposed revokable statutory license does not conflict with local copyright law, if film-makers and their rights-holders agree that it is not harmful to them to make Cultural Use of their work in this way.

    The documentary's date of production is not stated, or whether it has yet been broadcast. It is valid to ask why this photographer's work was included without authorisation in the final edit - perhaps in the confident expectation that Digital Economy Bill Clause 43 would by now have authorised this commercial use of orphan works, possibly as part of the joint BBC/JISC/National Archives/British Library/BFI "Digital Public Space" initiative, which first surfaced on November 1st 2010 in a Guardian interview with Tony Ageh, Controller of Development for the BBC Archive project?

    As described by JISC it is intended to

    "...deal with the largest barrier to mass digitisation, that of copyright. The DPS would be constructed as a secure, trusted space for high-quality content. Copyright material would be made freely available to the public, but access would be via authentication and delivered via universities, libraries, schools etc. and, if federated infrastructure develops suitably, to individuals. At the same time, the DPS would offer costed access to commercial users wishing to exploit the goldmine of content. The costs would be used to pay back the rights holders and sustain the DPS."

    “Goldmine of content.” Whose gold, and who is mining it?

    The documentary could be re-edited to remove the photographer's orphan works - he is only one of fourteen artists featured. After editing, "a normal exploitation of the work" could be made of it in the usual ways.

    LINKS

    http://www.publications.parliament.uk/pa/cm200910/cmbills/089/10089.49-55.html
    http://www.bbc.co.uk/aboutthebbc/future/partnerships.shtml
    http://www.jisc.ac.uk/
    http://www.nationalarchives.gov.uk/
    http://www.bfi.org.uk/
    http://digitisation.jiscinvolve.org/wp/2010/11/02/uk-national-digital-library/
    http://www.guardian.co.uk/media/2010/nov/01/tony-ageh-interview-bbc-archive
    http://en.wikipedia.org/wiki/Tony_Ageh
    http://www.bbc.co.uk/pressoffice/pressreleases/stories/2008/10_october/10/ageh.shtml
    http://www.bbc.co.uk/archive/
    http://digitisation.jiscinvolve.org/wp/2010/11/02/uk-national-digital-library/