Hargreaves Review – Orphan Works?

December 13, 2010

Hargreaves Review
In a message to the Hargreaves Review team last week Jeremy Phillips suggested a few practitioners, including myself, whose perspective may be of interest to Tom Loosemore.   Although I had been aware a review of UK copyright law was under way with a view to potentially incorporating US style fair use provisions, I was not following its fine details closely.  From now on I will be doing so, and in my next post I will discuss the recent decision in Meltwater which is relevant to the Hargreaves Review.

Terms of reference
The terms of reference of the Hargreaves Review are to propose how UK’s IP framework can further promote entrepreneurialism, economic growth and social and commercial innovation.  It will aim to identify barriers to growth in the IP system, and how to overcome them.

Specifically the subject under examination is barriers to new internet-based business models, including information access, and costs of obtaining permissions from existing rights-holders.

The review was launched by the Prime Minister, David Cameron last month as reported by the BBC.  Apparently the Prime Minister was particularly interested in the fact that the founders of Google had told the government they could not have started their company in Britain.  “Over there, they have what are called ‘fair-use’ provisions, which some people believe gives companies more breathing space to create new products and services”.

What is the position in USA?
It is interesting to find out how the situation differs in the USA in practice, and the extent to which  the differences over there are down to fair use.

Google was on the receiving end of a law suit from AFP, a news agency in 2005.  It won the case partly by arguing that headlines were uncopyrightable.  By contrast, in the Meltwater decision recently it was decided that headlines are copyright.

What might the Hargreaves Review do?
So what might the Hargreaves Review do to alleviate some of the issues the law faces?  As the Review is to make recommendations, among other things, on what short and medium term measures may be taken now within the international framework to give the UK a competitive advantage, their remit is quite broad.  It will include an assessment as to how the IP framework could better enable new business models appropriate to the digital age, in terms of reducing the cost and complexity of enforcing IP rights within the UK and internationally as well as the cost and complexity to SMEs of accessing IP services to help them to protect and exploit IP.

Orphan works
One immediate and well known problem I would mention for internet businesses is orphan works, and whether there are possible ways such as copyright registration to address the problem they pose.

A distinguishing feature of copyright, when compared to other intellectual property rights such as patents and trademarks, is that it does not require the creator to actively register his or her creation. Their work is automatically protected, and remains so until 70 years after the death of the creator, at which point it enters the public domain.

Although, this is seen by many as an advantageous characteristic of the copyright system, encouraging as it does the creation of new works whose authors need not worry about formal registration, on the other hand, it is a disadvantage for doing business online.

In the digital age copying, reworking and remixing work is as common as breathing.  So the lack of any copyright registration formalities makes it increasingly difficult for creators to legally produce derivative works. A derivative work could include a translation, creating a podcast from a written article, or writing a play based on a book, and so on.

The inability to trace the copyright owner in order to acquire permission or agree licensing terms is a serious problem, especially, given the speed that is often essential online.

A famous example of this occurred during the development of the Google Books project, where Google found they were simply unable to establish the identity of copyright owners of numerous texts. What once appeared to be an advantage of an efficient copyright regime requiring no initial formalities has been subsequently rendered a rather cumbersome stumbling block when applied online.

Works whose current copyright owner cannot be identified, have been labelled “orphan works” and the scale of the problem is not small by any means. Indeed, the British Library estimates that 40% of its in-copyright stock is orphaned in this sense.

Practical Consequences
A would-be derivative author in the UK must demonstrate that they have made ‘reasonable efforts’ to trace the current copyright owner. Unfortunately however, this protection only applies to anonymous and pseudonymous works. In reality therefore, there is little leeway for a prospective borrower to do so without infringing copyright. Even if the copyright owner is found, the process is likely to cost time and money and is perhaps not a viable option for a small business.

Other jurisdictions are often more permissive. Under Canadian law for example, a licensing scheme allows licences for orphaned works to be issued following a search of “reasonable efforts” by the prospective user. A similar light-touch system recently proposed in the United States would enable the use of orphan works in a similar manner.

Until such time as the UK identifies reforms for this area of copyright law, which is currently out of step with the internet age, businesses are effectively unable to use orphan works in view of the time likely to be wasted in this pursuit.  What is ideally needed, is something as quick and easy as the solution currently used online – which is to try to identify and use works licensed under the increasingly popular Creative Commons system.