OOOPS! In November 2009 we meant to refer you to not this. Too much happening... interesting times...

Orphaned works: wait

IN THE USA, the "Shawn Bentley Orphan  Works" Bill was passed by the Senate on 26 September - without debate, using a procedure entirely opaque to non-US policy wonks. We do not have a date for any action in the House of Representatives, Congress' other part.

Orphan Esther Summerton with Caddy Jellyby from Dickens' Bleak House - by Phiz
Orphan Esther Summerton with Caddy Jellyby from Charles Dickens' Bleak House: graphic is not an orphan, but by Phiz (Hablot Knight Browne, 1815-1882).

If passed, this law would instruct the Register of Copyrights (a person) to produce guidelines on what constitutes "diligent search" for the author of a work. Anyone who followed the guidelines, failed to find an author, and went ahead and used their words or pictures or tunes would, in the event of the author showing up, have to pay only "actual damages". The use would still, somewhat bizarrely, be illegal. The user would be protected from the "statutory damages" that are available in the US to authors who register their works with the Register.

Back in the UK, we have a much more measured debate. The government's Intellectual Property Office called another informal meeting on 29 September, with representatives of authors, publishers and libraries. It presented three options for carrying out the recommendation of last year's Treasury Gowers Review to Do Something about orphaned works.

The first would be to go to Brussels to change EU law to provide an "exception" to copyright - "exceptions" are the jargon for rules allowing specified used of works, not interfering with their "normal exploitation", without the author's authorisation - for example to make Braille editions. This process would take several years.

The second would be to leave copyright law alone and treat orphaned works in a way similar to abandoned or unclaimed real property. This could allow an "extended collective licensing" scheme, in which would-be users demonstrate to a collecting society, such as the writers' ALCS or the image-makers' DACS, that they had searched properly, and then pay a fee for a licence. It could equally provide a framework for a new UK law to implement the Canadian model, in which would-be users would apply to a government-appointed board.

The stinger with either of these options is that in current UK law on abandoned real property, cash goes to central government funds.  The NUJ's position is that if anything is done about orphaned works, then it must involve users getting a licence in advance; the fee would go to the author if they showed up, and otherwise would go to the benefit of authors in general, for example for training - as happens to unallocated authors' funds in the Nordic countries.

The third option - which gained no support whatsoever - was the US model. The killer for the IPO's lawyers is that breach of copyright is a criminal offence under section 107 of the Copyright, Designs and Patents Act 1988: we know of no prosecutions under this section, but there it is. This also rules out schemes such as the Copyright Licensing Agency's proposal to insure users against claims from authors who show up.

This advisory meeting did not reach a conclusion.

Libraries say 'Shhh!'

The discussion on orphaned works in the UK and EU has been driven, publicly, by the libraries. They are under political pressure to digitise their collections in bulk - and make them available online. Library organisations have signed up to EU-sponsored guidelines on how to search for authors - but under these they would still have to search, rather than just feeding books and magazines into a machine that scans and shreds.

One thing notably missing from the debate so far is this: what is a library supposed to do when it does know who the authors are and where we are? How will they ask before putting our words and pictures online, and how will they pay? It seems that's what's really under discussion here is a redefinition of the word "library".

The other thing missing is explicit representation in the debate for the Google corporation, which has a massive interest in being able to put whatever it wants, from library holdings or elsewhere,  online without asking, to drive revenue to its advertising wing.

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