stop confiscation of your property and Human Rights in the UK Enterprise and Regulatory Reform Bill

As creators and initial rights-holders we believe it to be our prerogative to define "cultural use", and particularly what is not "cultural use". We wish to enable the cultural use of so-called “orphan works”.

Cultural use (including use for preservation, private study and private research) enables the free display of a digital object devoid of any kind of revenue generation or advertising, that does not promote any kind of commercial, educational, political, religious or charitable organisation or their objectives, does not include any right to copy or include in derivative works, and does not in any way conflict with “a normal exploitation of the work” as defined by the Berne Convention Article 9 and TRIPS Article 13. In this context well-established examples of Cultural Use are:

  1. Viewing in-copyright pictures hanging on the wall of a public art gallery;
  2. Viewing in-copyright manuscripts and similar works in a museum;
  3. Online public gallery use.
Examples (i) and (ii) require a positive activity on the part of the viewer - one has to go to the gallery to see the picture, or the library to physically read the book. One is not allowed to remove, copy or change the artefact - just look at it or read it, and thereby gain cultural enrichment. In example (iii) digital networking brings the art gallery or library to the viewer, replacing the requirement that the viewer physically visit the gallery or library. Apart from that, there should be no conceptual or practical difference.

We prefer to use the term “Cultural Use” rather than the more vague "Non-commercial Use”, but for the sake of clarity have distinguished between what we regard as “Commercial” and “Non-commercial” uses:

Commercial Use is any use (including use for preservation, private study and private research) that directly or indirectly generates revenue for the user, including the rights holders, promotes their educational, political, religious or charitable objectives, allow copying; allow inclusion in derivative works.

Non-commercial Use is any use (including use for preservation, private study and private research) that DOES NOT directly or indirectly generate revenue for the user, including the rights holders; promote their educational, political, religious or charitable objectives, allow copying; allow inclusion in derivative works.


We distinguish by use, not category of user. Many advocate limiting usage based upon whether the licensor or user is a “cultural” or “commercial” entity. What, then, is the BBC? What are our great “cultural” institutions, with their commercial publishing arms and gallery shops? What of great corporations such as BP with their archives of historically significant photographs, films and documents? It is impossible to define an entity as being wholly “cultural” or wholly “commercial”. Therefore we distinguish by use alone, and wish to see organisations of all kinds making their archives available in the National Cultural Archive.

Cultural use is not an exception to copyright. Rights holders retain all of their rights at all times. It could be enabled by the grant of a statutory license for Cultural Use of works in their custody to any entity that demonstrates compliance with the legal, administrative and technical requirements of our proposed National Cultural Archive scheme.

Cultural Use is revokable. If the rights-holder of an orphan work readopts that work and wishes it to be removed from public display it must be removed and any digital facsimiles of that work, including backups, must be surrendered to the rights-holder by its Cultural Use custodian. This is in contrast to Creative Commons licensing which irrevocably grants certain rights in a work to the public.

Cultural use is not “private, non-commercial” use. It does not include any right to re-use, copy, amend, share or "mash up". It is strictly limited to viewing. The viewing link should be freely sharable.

The educational sector should be able to make Cultural Use of our orphan works. "Educational use", while including elements of cultural use, also contains elements of "commercial use": United Kingdom universities alone generated £59 billion for the UK economy in 2009, more than the pharmaceutical industry or the agricultural sector. Cultural use by the educational sector must be implemented in a way that does not materially influence conventional primary licensing of our intellectual property for educational use. Many creators depend on such licensing for their primary income.

No advertising, political, religious, charitable or sponsorship images or links are to be permitted in any Cultural Use context, but links to other similar Cultural Use galleries are to be allowed. PayPal-type micropayment voluntary contribution links are to be allowed, functioning as museum donation boxes. Galleries can of course be "themed", as public exhibitions are, but are not to take an actively political, religious or "charitable" stance. A National Cultural Archive gallery must not itself be accessible to search engines such as Google, but every image in it must be linked to a normally-searchable thumbnails gallery, thumbnails being full-image watermarked.

In this way The National Cultural Archive scheme would allow the public to travel to a "virtual museum" to see the pictures and gain cultural enrichment from having done so, but do nothing else with them. All of this could easily be implemented by existing technology (much of it is required of ISPs in other parts of the Digital Economy Act) and puts the onus on public institutions, not creators, to police usage. Although not entirely damage-free, this scheme would cause minimal economic damage to creators compared with every other so-called orphan works licensing scheme so far proposed. It does not make art prints valueless, for example, and deals as far as is practicable with the existing-orphans problem.

Cultural Use