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-Part of the problem is whether and if so, in how far a distinction should be made between unpublished works and published works.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

I’ve been avoiding blogging about Doris’s Crack because…well, everyone else has already blogged about it. But the quotes from today’s New York Times article about the Crack are too good to ignore.

Also see:

• The Art Law Blog, Nov 27 and Dec 12
• Coxsoft Art News, Oct 8, Oct 10 and Nov 26
• Sculpture Community, “wise crack” thread

On Tuesday, Cory Doctorow had an article published in the Guardian Unlimited arguing that [a]n exhibition of pop art at London’s National Portrait Gallery unwittingly celebrates a golden age before copyright was king. The article was brought to my attention through the Art Law Blog, and reading it posed many questions.

Firstly, Doctorow points out what could be seen as copyright hypocrisy on the part of the Pop Art Portraits project, or London’s National Portrait Gallery in general. Essentially, he argues that the portraits are employing creative reuse of existing work, presumably in violation of the copyrights of the primary works holders, but the National Portrait Gallery prohibits photography to protect the copyrights of the works on display.

I say presumably because although their programme does not say a word about copyright, this does not necessarily mean that the artists have used the work without compensation to the original artists, or that they necessarily need to (depending on various fair use issues). To my knowledge, it is not a general practise to include information regarding who has been paid copyright residuals in the programme for a show.

That being said, I would hope that copyright has been paid where appropriate, but doubt it. Mostly because I know the administrative web that needs to be untangled to clear all the copyrights for using anything in a magazine is complex and time-consuming. And I doubt Disney would allow the use of any of their characters for a price affordable by an artist or a publicly funded gallery.

Secondly, there is the whole issue of how much copyright enforcement is too much. That I’m not prepared to tackle right at this time, but it seems that excessive copyright enforcement is a combination of legitimate copyright concerns, a disregard for fair use and a dash of desire for censorship/control. The concept of copyright in itself is not a negative thing, but we certainly need to revisit the terms of copyright and the methods and extent of enforcement happening recently.