1709 Blog: for all the copyright community

Sunday, 17 November 2013

Orphans and legitimacy: a new article

Our dear friend and colleague Eleonora is of course far too modest to let you know, but she has just had a major article published in the European Intellectual Property Review (the EIPR, published monthly by Sweet & Maxwell). The piece, "The Orphan Works Provisions of the ERR Act: Are They Compatible With UK and EU Laws?", [2013] 12 EIPR 724-740, is neatly summarised by its abstract as follows:
"This article analyses the legislative framework for orphan works as resulting from the Enterprise and Regulatory Reform Act 2013. Although the actual shape of UK orphan works legislation has yet to be fully defined, this contribution questions whether in principle its orphan works provisions are compatible with the Copyright, Designs and Patents Act 1988, Directive 2001/29, the Charter of Fundamental Rights of the European Union and the Orphan Works Directive. It holds the view that there must be serious doubts about the legitimacy of the Enterprise and Regulatory Reform Act's orphan works provisions under UK and EU laws".

20 comments:

Andy j said...

Of course it hard to comment in detail on the ERRA until we have had sight of the draft secondary legislation concerning the treatment of orphan works. But based on what was said in debate in Parliament I fear Eleonora is entirely justified in her conclusions. It is largely unclear to me why the ERRA was not just used to bring the EU orphan work directive into UK law without any substantial alteration. One of the arguments put forward for the UK stance of allowing the commercial exploitation of orphan works was that without this - something opposed by the Directive - museums and archives would not be able to attract commercial partners to assist in the enormous task of digitising their orphan collections. But as we have seen in the recent decision on the Google Books Project in the US (reported on in this 1709 posting) Google stands ready to assist and their involvement (at least in the view of the Second Circuit Court of Appeals) is not seen as a direct commercial use. Whilst I wouldn't advocate that Google should be the only or even preferred partner in every case, I am sure there are sufficient charities and other not-for-profit organisations available to assist in the worthy task of making some orphan works available to a wider public without bringing the whole process into disrepute by naked and rapacious commercial exploitation. By shutting out companies and organisations whose only motive is making money, we stand a better chance of meeting the concerns of groups such as modern day photographers who fear their work will become prey to being 'orphaned'.

Eleonora Rosati said...

Thanks so much for your very interesting and thought-provoking comment Andy! The Google Books decision will add a lot to European (EU, UK, etc) debates on orphan works ...

john r walker said...

eleonora
"doubts about the legitimacy of the Enterprise and Regulatory Reform Act's orphan works provisions under UK and EU laws"
Could you elaborate,a bit?

Eleonora Rosati said...

@John: Although the UK has also adopted an ECL scheme, I do not deal with it in my article, as I just look at orphan works provisions in new Sec 116A UK CDPA.

My point is that the OW Directive may not leave much room for national initiatives as broad as the UK one. Plus, the way Sec 116A is formulated made me doubt whether UK approach is really a licensing one. I try to demonstrate that it is rather an exception in disguise, in favour of both the Secretary of State (who will have to issue the implementing regulations) and the potential users of orphan works.

Furthermore, the way Sec 116A is drafted may contravene the CDPA, and also go against the InfoSoc Directive (which does not provide any commercial exceptions for use of orphan works) and the Charter of Fundamental Rights (in that it deprives missing rights owners of their IP rights) ...

Paul Ellis said...

'Of course it hard to comment in detail on the ERRA until we have had sight of the draft secondary legislation concerning the treatment of orphan works."

Being a member of the IPO's OW/ECL Working Group I've seen it, and can tell you that apart from some surprisingly sloppy drafting, including crass copy-and-paste errors in the draft SI we saw, it contains no surprises whatsoever. The painful lack of thinking-though of perfectly foreseeable consequences remains, in full.

Good article, Eleanora. Perhaps the current hiatus is the result of the problems you have eloquently described: namely that 'progress' cannot reasonably be made with these proposals because they are ILLEGAL.

Many thanks, and also for the two name-checks.

Eleonora Rosati said...

Thanks for your comment Paul. Indeed, I look forward to seeing the draft regulations.

So what? said...

Does it matter if the UK system is not compatible with EU law? Who is going to object? Or is this a theoretical discussion for theory's sake? There are lots of things you can talk about in theory such as should rabbits have copyright rights but what would the point be? Maybe we should stick to talking about things taht actually matter to people...?

Eleonora Rosati said...

Thanks for your comment ‘So what?’.

While I believe that some research on rabbits and copyright might be also worth pursuing, I suspect that the issue of orphan works actually matters to people, otherwise there would not be so much debate being undertaken (US) and legislative initiatives being proposed (and also opposed) in a number of legal systems (UK, EU).

This said, answering the question whether UK OW scheme is compatible with EU law might be relevant to determine:

(1) what room the OW Directive leaves to Member States for adopting their own OW legislations and, on a more general level,

(2) to what extent national initiatives might be pre-empted following EU intervention in a certain area, not just orphan works.
Think for instance of copyright exclusive rights (one of the questions in Svensson is whether national laws can broaden the scope of the right of communication to the public and go beyond the InfoSoc Directive), exceptions, new rights (like the Press Publisher right in Germany) … I suspect that all these issues matter to both people and copyright lawyers.

Andy J said...

So what's comments earlier may appear flippant to some people, but assuming he/she is not an IP lawyer, then a 'so what?' attitude amongst consumers of copyright works is highly understandable. (I'm not sure what his/her comments tell us if he/she is, in fact, a copyright lawyer!)
The problem is that we have a raft of bits of legislation, founded on a Convention which is 126 years old, most of which predates the age of the internet and even the most up to date parts of which are still playing catch-up with technological changes.
The de facto purpose of copyright has also changed out of all recognition over the last 100 years, despite the fact that the originators of copyright works (ie human authors) still have fundamentally the same needs in terms of economic returns for their intellectual efforts. Admittedly life expectancy has increased over that period by about 30 years (according to WHO figures life expectancy in the developed world at the beginning of the twentieth century was around 50 years; today in the same region it is around 80 years) while copyright terms have risen from 21 years at the time of the Statute of Anne, to life plus fifty years with the 1911 Copyright Act to something like 100-110 years now (based on an author being aged between 30-40 when a work is created).
The march of ever longer copyright terms fails to take account of the fact that increases in life expectancy also potentially results in a longer working life (cf Barbara Cartland), and it also fails to take account of the fact that a work which is no longer available to the public (such as a book which is out of print) severely limits to economic returns to the author while at the same restricting the public's access to the work. In other words neither side of the benefit equation envisaged by copyright theorists is satisfied by out-of-print books or their equivalents in the other copyright media.
The breadth of works which are now covered by copyright is substantial, with several forms of work also being protected in other IP categories (eg design, works of artistic craftsmanship). Software continues to be something of a cuckoo in the copyright nest and this, along with database right, exemplifies the unsatisfactory practice of shoe-horning new media into a legal concept that really isn't suited to their characteristics. Add to this the obvious fact that some works also involve very little true intellectual or creative input (some photographs and sound recordings, for example) and it is easy to see why the whole legislative structure fails to impress outsiders. (continued below)

Andy J said...

(continued)
Of course if we didn't have all the legacy conventions, treaties and directives tying our hands, reform of copyright would be much simpler. But even if we didn't have such shackles, root and branch copyright reform would not in fact happen because of the vested interests, not of authors for whom copyright ostensibly exists, but of the large corporations, the same people who benefit from ever more restrictive laws and international treaties we are told by sources such as Techdirt. When countries such as Canada, Ireland or the USA, or even supra-national states such as the EU, set about reform of copyright they know that realistically all they can do is tinker around the edges, adding nuances to aspects where the courts have found there are anomalies or lacunae with the existing patchwork. The only reason we need legislation to release true orphan works is because legislators back in 1956 and 1988 failed to satisfactorily tie up the loose ends concerning unpublished works hanging over from the 1911 Act. What's more orphan works would largely be a non-problem if the registering of copyright first introduced by the Statute of Anne had been retained and not outlawed by the Berne Convention.
And so as Paul Ellis indicates, we are about to bring in more unfit-for-purpose legislation to deal with a problem which could easily have been addressed more simply, so as to exclude the sort of consequences Stop43 and others foresee. A simple tweak to s 42 CDPA would have enabled museums, libraries and archives to legally make their collections more widely available through digitisation, without opening the entire gamut of contemporary works to what may amount to a licence to poach at will.

So what? said...

Eleonora - my point was: does it matter if the UK legislation is not compatible with EU law? It only matters if someone decides to challenge the legislation - but is there anyone who has a motive to do so?

Eleonora Rosati said...

@ So What?: I reckon that not all stakeholders are happy with the forthcoming UK scheme ... For instance, photographers have opposed commercial orphan works schemes which would include photographs and other stand-alone images. The have done so both at the time of the Digital Economy Bill (cl 43) and during the various stages which eventually led to the adoption of the ERR Act.

So what? said...

So what is your objective here? Do you support photographers in this cause? Or do you merely raise these issues as theoretical points regardless of the practical implications? I am reminding you that there is no such thing as a neutral academic position - everything has political and commercial implications and it is irresponsible to attempt to 'stand above' them.

Anonymous said...

It seems to me that Article 6(4) when read in the light of recital 22 which was a very hard fought political compromise at EU level btw, is rather permissive. And as with all "without prejudice" provisions in EU law is the shorthand way for demonstrating that clear agreement could not be reached on excluding an opposing approach. The last sentence of 6 (2) along with the scope of "permitted use" would be key to any analysis of how far a contractual arrangement can go. On the face of it, "commercial" does not appear to be excluded or at least not anymore. Ultimately, it will be for a complainant (aggrieved orphan -who can that be) to make a case to the Commission that the UK law is not in compliance. Can't see an infringement myself but what do I know.

Eleonora Rosati said...

@ So What?: My "objective" was just to attempt a technical analysis: the UK position as regards a national orphan works scheme was not affected by the adoption of the EU directive. I wanted to see whether this was really the case.

I also believe - as I said - that the relationship between EU and national initiatives in the area of copyright should be investigated further.

I don't think that asking these questions is acting "irresponsibly", as any response may affect a number of very important issues which are currently being discussed.

john r walker said...

The failed Google Books Settlement was a similar attempt to impose a extended global solution to Copyright problems such as 'orphans'. The GBS was a impossible hybrid- a self-reflexive paradox that spun in a infinity loop for years,until Justice Chin finally pulled the plug.

"so What".... The Berne is a International, Economic Trade convention. The UK is essentially a big international trading port. A lot of the rights traded in the UK are owned by Americans... Get it?

Paul Ellis said...

From what I recall of the draft SI I saw (copies of which the Working Group was not allowed to keep), the lasting impression of the proposed ERRA OW track is that as a consequence of the requirements of 'diligent search', 3rd party verification of that search, and the need to establish a 'market rate' for the proposed use - which in many instances is likely to require the consultation of industry experts - the ERRA OW licensing process is likely to be slow, unwieldy and costly, not least in the applicant's staff time costs.

In my view the likely result for low value uses of works such as photographs will be to introduce a new and perverse incentive to infringe. "It's an orphan work; who's going to challenge me? - and anyway in the unlikely event that I'm caught the settlement will probably cost me less than the OW licensing process would have."

So much for Hargreaves and the IPO's stated aim of increasing respect for copyright.

The WG heard the BBC repeatedly arguing for immediate use of orphans in a developing news story, in defiance of the principles established in the Banier Judgement. It may surprise you to find that the BBC has a very poor reputation among freelance photographers. This is one of many reasons why we believe our fears of the foreseeable consequences of this legislation are entirely justified.

And we haven't even started with ECL yet. Do you fancy taking a look at that, Eleonora, and discovering just how different the ERRA system will be to the Scandinavian model it is supposedly based upon? If necessary I can put you in touch with a world expert on Scandinavian ECL, but then again you probably already know of him. The IPO certainly does, but appears roundly to have ignored the advice they solicited from him.

john r walker said...

Paul
"the ERRA OW licensing process is likely to be slow, unwieldy and costly" assuming that the scheme only affects fairly genuine 'orphans' it is also likely to run at a net loss; for the public/government body charged with management of it it( even if it was to put all of the payments received toward management costs.)

Did anybody outline economics/pragmatics of how the scheme would pay for itself?

Paul Ellis said...

"Did anybody outline economics/pragmatics of how the scheme would pay for itself?"

No. Simple as that. No-one has explicitly described how this scheme will be funded. I think the general assumption is that prospective licensees will pay all costs. Similarly, no-one has said how the costs of creating and maintaining orphan works registers are to be met.

john r walker said...

Paul it is pretty obvious that the viability of these schemes are predicated on some sort of compulsory cross-subsidy...