Julianna Yau’s blog

Yesterday, I attended a lecture presented by ALAI and hosted at the Access Copyright office on orphan works. The speaker was Willem Grosheide, a professor from the Netherlands.

This was a very interesting discussion, especially in light of all the activity in the U.S. surrounding their Orphan Works legislation. Here are my notes:

1. Definition of Orphan Works
2. Problem D elimination
3. EU Regulative Initiative
4. National Approaches
-France
-Germany
-United Kingdom
-Sweden
5. Future Action

Grosheide’s interests
-human rights & copyright
-enforcement of IP rights
-indigenous work

-what’s new about orphan works?
-why is it a problem if the author is not found and no damages are not identified?
-have a legal regime where we are required to have permission to use work

Problem Delimitation
-It follows from the impossibility to identify and/or locate the rightowner and the consequential impossibility to ask permission for using the work, that particularly general interest uses such as those by archives and libraries or for educational or touristic purposes are hampered.
–more opportunities to make use of orphan works
-The problem applies in principle to all types of works but may rise specific difficulties with regard to works of multiple ownership.
–require permission from all owners
–for some, there is too much risk involved in not having permission to use others’ work
–others take the risk, and say that they will work with the original artist if they appear, but the original artist can have the work pulled or demand an unaccessible amount of money for the use
-Part of the problem is whether and if so, in how far a distinction should be made between unpublished works and published works.
-The extent of the problem is unknown; however, according to an estimate by the British Library 40% of its collection contains orphan works

EU Regulative Initiatives
-High Level Expert Group on Digital Libraries established Copyright Subgroup ….who has made general recommendations w/regard to orphan works (PDF)
-voluntarily establishing databases offering an overview of the supposed orphan works in combination with establishing an appropriate rights management system w/regard to orphan work
-finding contractual solutions supported by an extension effect, i.e. a legal assumption of representation by the rightowners
–problem of representing artists who re not members
-leaving it up to the Member-States to find the best solutions provided that they are in line w/some core principles

-in Europe, trademark & patent law has been harmonized, but not copyright
-copyright law –> set of directives ruling different aspects, but no general approach or theory for handling copyright (e.g. software directive)
-copyright so related to the culture of a country, they feel they need to be careful about how to proceed with harmonization
–e.g. drum bands have an exception in Italy because of the culture
–e.g. Netherlands have exception for singing in Church; translation of hymns, poets created new wording, can’t allow them to charge for each time the song is performed
-The Core Principles offered by the Copyright Subgroup are:
-formulating a common definition of the orphan work
-introducing the criteria of diligent search
-construing a legal procedure to cope with the ultimate showing up of a rightowner
-providing that the applicable regime serves both commercial and non-commercial uses but with a preferential treatment of non-commercial uses
-acknowledging that the applicable regime will not be able under all circumstances to give an individual treatment
-providing for a general financial compensation in case that the rightowner eventually shows up

France
-Application Articles L. 12-3 (moral rights), L. 122-9 9 (exploitation right) CPI
-Conseil supérieur de la propriété littéraire et artistique
-Programme de travail 2007-2008
www.culture.gouv.fr/culture/cspla/index-cspla.htm
-Commission pour la relance de la politique culturelle, Livre Blanc (2007)
-Institut National de l’Audiovisuel (INA)

Germany
-Par. 31 UrhG (new models of use), Gesetzentwurf 15-06-2006, Drucksache 16/1818
-Par 52c Offentliche Zuganglichmachung verwaister bzw. nicht mehr verwerteter oder obsoleter Werke

UK
-British Screen Advisory Council (BSAC)
Copyright and Orphan Works = A paper prepared for the Gowers Review 31-8-2006 (proposal for an amendment of the Copyright Act)
-Gowers Review of Intellectual Property (December 2006), http:/www.hm-treasury.gov.uk/media/6/E/pbr06_gowers_report_755.pdf, Recommendation 13, p.69-72: Propose a provision for orphan works to the European Commission, amending Directive 2001/29/EC (information Society Directive)

Sweden
-Article 42a Copyright Act
–Extended Collective Licensing System
An extended collectie license as referred to in articles 42b-42f…

Holland
IvIR, The Recasting of Copyright & Related Rights for the Kowledge Economy (Nov 2006) (PDF)
-Six Alternatie Solutions (either nationally or EU-wide):
1. Copyright Ownership and Rights Management Information (publicly accessible)
2. Collective Rights Management
3….? (slide changed too quickly)
-So far, it has not been demonstrated that the orphan works problem has a noticeable impact on the internal market

Discussion notes:

-harmonization of law is crucial
-bottom-up harmonization, starting w/EU
-unlikely that WIPO will take this initiative
-how to harmonize worldwide??
-harmonization desirable for trade, but every nation has different interests
-treaty process is already too difficult

-search for creator of work in Canada –> individual does search, submits report to Copyright Board, which gets sent to Access Copyright, who does additional research; works with collectives
-Access Copyright makes the recommendation, and Copyright Board makes the decision
-Copyright Board is specific to published works within Canada
-why does the research not involve the collectives?
-heirs in copyright –> how to determine?? –> unlocatable vs difficult to locate
-unlocatable vs whether it is copyright protected

~moral rights, copyright & unpublished works

-how long to keep money if it is collected on behalf of the unlocatable author
-Access Copyright keeps a list of unlocatable authors (online)
-what happens when the unlocatable author shows up?
-Access Copyright – maybe 40 or 50 in Permissions are unlocatable; around 20 go to Orphan Works area
-orphan works and UGC
-website waivers; cross-country activity

Tags: access copyright, alai, copyright, france, germany, orphan works, sweden, UK, US, Willem Grosheide

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I wrote this on the train into Toronto yesterday morning:

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At the Technology in the Arts conference, Elsie Orenstein gave a presentation on copyright for artists and arts managers. Although I haven’t been engaged in the discussions on copyright reform for as long as some of my colleagues, I must admit that I was still shocked when Orenstein told the audience that she felt the current Copyright Act is inadequate for protecting copyright in the digital age.

This, of course, is a sore spot and point of contention for many. On the one hand, many of us recognize and lobby for the need for copyright reform. On the other, scores of lawsuits relating to copyright infringement in digital media are being filed based purely on current copyright law. Often, the very entities which preach about current copyright law being too lax are the ones who are also finding ways to abuse it.

I believe that some of the terminology in the Copyright Act needs to be changed so that it speaks more generally to concept than specific technologies. I also believe this type of revision is very different from what many envision when they speak of “modernizing” the language in the Copyright Act.

Because of how quickly technology and its use is changing, stripping the Act of technology-specific language is wholly important. Many of the key players in the music industry are now trying to determine whether p2p file sharing constitutes a “broadcast”, and those in the literary industries are doing the same with the concept of “publication”. Rather than probing the intent of this terminology, many find themselves in a labyrinth of legal and technical jargon as they try to retrofit the technologies and methods used online and in other digital media to the terminology being used by an archaic document.

For the most part, the core concepts behind the rights and remedies provided by the Copyright Act are sound. Consultation with the various creator groups and user/public interest/consumer groups needs to happen for us to better define and revisit some of the particularities of the rights.

With the dropping cost of production and distribution of creative works, the emergence of the User Generated Content movement can not be ignored in discussions of copyright. Not only has it made us more aware of the user rights which need to be protected, but it is changing the way we see the motivation for and value of creative works.

Although not entirely accurate, the current Copyright Act sees creative works as being the product of a limited number of people and having monetary value. This is no longer entirely true. More than ever before (or perhaps simply more visible than before), people are participating in the act of artistic creation. Not all of this activity, however, is being done for monetary gain. A hobby which used to be limited to the elite, who could afford the time and money for things like painting classes from a practised artisan, is now accessible to and being practised by hundreds of thousands of individuals. Not only that, but this new community of creators are able to publish their work to an expansive audience with little investment in time, commitment or money.

This poses a problem to the creators whose artistic practise is not merely driven by the desire to create, but so much that they need to find a way to sustain themselves financially based purely on their creative work.

So, now I’ll post the scary question which I have yet to hear others ask:

Does it still make sense for creators to attempt to make a living on their creative works?

For a pessimist, the situation looks quite dire. The concept of the starving artist is not new, and creators have always struggled with how they can generate enough income from their artistic practise to not need supplementary jobs and live above the poverty line. Now that competition for patrons is becoming more fierce (especially because much of this competition is making their creations available for free), it looks as though fewer people are willing to pay for an artistic experience.

But we certainly have no shortage of artists (even living ones) who are making more than a comfortable living from what they do. Whether they be performer, writer or visual artist, we have a fair number of superstars at the national, international and local level. Joining the ranks of superstars is a whole other challenge, exasperated not directly by technology being able to dilute an artist’s work, but by the infusion of a new class of creators producing work primarily for their own enjoyment.

We should look to copyright law as an extension of our understanding and agreement on the workings of the creative industry, not as a business model in and of itself.

Tags: art, business models, copyright, technology in the arts conference

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John Degen, fellow creator and copyright blogger, is offering his book, The Uninvited Guest, as a free PDF download. This book was shortlisted for Canada’s First Novel Award, and this experiment will be interesting to watch alongside MCM’s Panda Apples.

Tags: business models, copyright, experiments, john degen, mcm

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Paul Couvrette to take a portrait of Ottawa-Gatineau Residents

May 12, 2008, OTTAWA – NDP MP Paul Dewar (Ottawa Centre) announced today that he will host a public rally to show public support for keeping the Portrait Gallery of Canada in the Capital on Friday May 16. Dewar is joined by Ottawa photographer Paul Couvrette and the Canadian Artists’ Representation/Le Front des artistes canadiens (CARFAC).

“Friday May 16 is the final day of submissions for the portrait gallery location. This is our opportunity to gather together and show the cabinet that people in the National Capital Region and across the country want the portrait gallery to stay in Ottawa” said Dewar. “I invite everyone who cares about this project from the arts community to the tourism industry, from my colleagues in parliament to the City Hall, to come together for Ottawa”.

World-renowned Ottawa photographer, Paul Couvrette, will take a portrait of community members attending this historic event. Couvrette will donate this portrait to the Portrait Gallery of Canada. Canadians from across the country will be invited to submit their self-portraits online.

CARFAC affiliates from across the country have indicated their support for keeping the gallery in the capital. Even Allison Argy Burgess of Visual Arts Alberta Association – the only other province with bids for the portrait gallery – has said: “The Nation’s Capital is where a National Portrait Gallery belongs”.

Dewar is urging local media in Ottawa and Gatineau to publicize the event announcement so that our community can send a strong message to the cabinet before the final decision regarding the location of the portrait gallery is made.

Details of the event:

When: Friday May 16, 2008, 12 noon to 1 pm

Where: NCC InfoCentre Terrace, right across from the Parliament buildings on Wellington Street

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Tags: art, carfac, national portrait gallery, ottawa, political, rallies

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