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-Part of the problem is whether and if so, in how far a distinction should be made between unpublished works and published works.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

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Today, I was informed that the Orphaned Works bill in the US has been resurrected. One of the problematic aspects of the bill is its assumptions that any unregistered work can be considered orphaned. This is a huge change to the way copyright currently works, and is a chilling proposed solution to the problem of locating a copyright holder (which I mentioned yesterday).

Some things to consider:

1. Currently, all works in the US (like in Canada) are automatically copyrighted to the creator. No registration is required. This greatly reduces the financial and administrative burden of some creators, and increases the financial and administrative burden of creators who appropriate/creatively reuse work. It also increases the financial and administrative burden of any other party who wants to use a copyrighted work in a context outside of fair use.
2. The Orphaned Works bill proposes that works which are not registered will be considered orphaned, and therefore not be protected by copyright or moral rights. This will allow greater access to works outside of the context of fair use, but swing the financial and administrative burden to the creators.
3. The cost of copyright registration in the US is currently $45 per work. For me to register the copyright in the US (if I were working from the US) for my modest collection of 27 sculpture would cost $1,215. For some, this could be seen as part of the cost of producing work and/or securing their ability to further generate income from their work. However, this would be impossible for artists who generate any amount of income based on a low overhead.
4. Registration of copyright in the US requires the submission of a copy of the work. This is not the case in Canada (and, oddly, Canada’s registration fee is substantially higher at $65 per work for most types of work).

A quick search on Google shows that this is has been a concern in the US for some time. As Mark Simon noted, this is also happening in Europe (although I am having a difficult time tracking down information about that, amidst all the US content).

Locating the creator of a work is certainly an issue, but these proposed changes are not the solution… primarily because the solution shouldn’t create a whole host of problems for those who used to be protected.

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Disclaimer: this isn’t a paid post, although I am happy to be reimbursed by after the fact…

For the past year, I have been trying to sell my first-generation Nomad Jukebox Zen. Because it uses a hard drive (instead of flash memory) and is considered humongous by today’s standards (it’s about the size of a Walkman), no one would take it from me.

Through one of the 20+ blogs to which I’m subscribed, I discovered SecondRotation. I must admit I was skeptical about it at first, mainly because it seemed too good to be true. It was offering me $50US for the Zen, which was more than I expected to get from it (after posting it with no responses on Kijiji and Craigslist over several months). Subtract the$13 I paid for shipping, and it’s still a good deal.

After going through their price estimate system (which was very straightforward) and selecting my payment option (cheque or PayPal; I opted for PayPal), I printed a shipping label and received an auto-confirmation by email.

The confirmation email had a very puzzling “Expires On” date, which was five calendar days from the issue date.  I didn’t expect the package to be delivered to them by the expiration date, but sent it anyway. I also contacted SecondRotation through their website to ask about the expiration date, but have yet to hear anything back from them. That was the only blip in the communication process.

I received an email about a-week-and-a-half later, indicating that they had received the Zen and would be inspecting it to ensure it matches the description I provided. Oddly enough, the tracking number from Canada Post still doesn’t reflect that the package has been delivered.

Twenty minutes later, I received an email from SecondRotation saying that they had completed the inspection and would be issuing my money in 5-10 business days. That was on a Friday.

The following Thursday, I received two emais from SecondRotation, notifying me that they had sent the money to my PayPal account. I logged into PayPal, and confirmed the money was received.

Total time elapsed: 2-and-a-half weeks, including a 1-and-a-half week shipment time across the border.

Aside from the absence of free shipping for Canada, their main caveat is they aren’t accepting everything yet. I have a basic Creative webcam I want to unload, and although they accept Creative webcams, they don’t accept the model I have. They also accept many cell phone models, but seemingly only models sold in the US.

Now if only they would take my laserdisc player.

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I recently learned that Purple Violets, an independent movie by Edward Burns, was available exclusively on iTunes. Being a movie fan, I rebooted my computer into Windows, and went to the PV website so I could buy the movie.

Although I watch almost anything (including bad movies out of curiosity or boredom), the synopsis for Purple Violets lost me at: “…relationship comedy about four friends from college ready for change”. That tagline alone was enough to kill my excitement for the movie’s method of availability. Still, because I had already logged out of Linux and into Windows, I thought I would follow through with it and test the process for buying the movie.

After Apple updated my version of iTunes, I infuriatingly discovered that the movie, like Hotel Chevalier in the weeks before it was bundled with the theatrical showing of The Darjeeling Limited, was only available to customers with an American billing address. This was not a big loss, considering I wasn’t looking forwards to having to watch a “…relationship comedy about four friends from college ready for change”. But if this trend continues, I may not be able to see many movies because an online store doesn’t allow customers outside of the US to purchase their digital files.

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Today, the Globe & Mail had an article by Pamela Hess on the some US officials calling for a redefining of privacy.

The technological and social practises in place today are very different from what they were 50, or even 10 years ago, and we certainly need to revisit our expectations and practises for privacy. The undertones of what the US officials are saying (at least as they are presented by Hess) concern me, though, because they seem to be using the changes in technology and culture to justify wider and more lenient access to information by the state.

Yes, “Millions of people in the United States – particularly young people –have already surrendered anonymity to social networking sites such as MySpace and Facebook, and to Internet commerce.”… But they have  “surrendered anonymity” voluntarily. The amount of information given and, for the most part, the audience for that information is controlled by the person volunteering the information. The question then becomes whether a person is still entitled to a reasonable expectation of privacy when they are providing information about themselves to multiple social networking and Internet commerce websites, and what is then “a reasonable expectation of privacy”.

Surely if I broadcast to my friends on Facebook that I’m going on vacation, I should expect them to engage me in conversation about the vacation and be inquisitive about it. Likewise, if I were one to make use of the “relationship status” field provided by Facebook, I should expect questions, congratulations or consolations from friends if I broadcast changes in my relationship status.

But by providing my information to multiple sources, should I expect someone (or the government) to lawfully harvest all of that information into a file? Sure, it could be done by anyone with the desire and enough time on their hands, but am I implicitly authorizing such a use of my information by simply providing it and authorizing, in the case of social networking sites and my own sites (such as this blog), the distribution of that information?

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