The Bill would permit works whose rights-owners reportedly could not be traced to be used for commercial purposes. It is regrettable that the Bill uses the emotive and inaccurate term ‘orphan works’ for what might be more properly termed ‘works with unlocated copyright-owners’.
In the case of printed written works, it has not been shown that legislation of this kind is needed. No evidence has been produced that publishers seeking to reprint, editors seeking to anthologise, or authors wishing to make adaptations experience significant difficulties in tracing rights-owners of out-of-print written works, and there is plenty of anecdotal evidence to the contrary. Moreover, the ALCS reports a very high degree of success in identifying and contacting authors of out-of-print works for the purpose of paying fees for photocopy revenues.
Books and other print publications are among the least likely creative products to become ‘orphaned’. Virtually all published written works carry the names of author and publisher and the publisher’s address. Meanwhile, since the development of the web, it has never been easier to trace authors, authors’ representatives, publishers, and, where relevant, business takeovers
Regrettably, it is not unknown for publishers, media companies or editors to use works (especially short works and excerpts) without troubling to clear permissions, even in cases where the author could easily be contacted; they simply wait to see if he or she finds out. There is a real risk that the orphan works provisions in the Bill will encourage this kind of behaviour.
In response to concerns expressed by professional photographers, the Government has asserted that ‘Any use of an orphan work will require payment of a fair licence fee, and this fee will be held safely and kept available to be claimed by the rightful owner should they come forwards.’
But for publishing or broadcasting uses there is no such thing as a ‘fair licence fee'; there is only the market rate for the work, as established in negotiations between the rights-holder and the licensee. This rate will vary depending on a number of factors that may include the likely profitability of the intended use, the quality of the work, the reputation of the author, the value of the work in terms of its specific contribution to the creative project, the extent to which another work might be substituted for it, and so on. This ‘fair licence fee’ is a chimera.
There has been no explanation as to who is going to fix the rates for the use of works with unlocated owners, and on what principles. Nor is it specified who shall hold the unclaimed fees in trust.
When owners of works that have been treated as orphans come forward to claim their property, they may feel that their works have been licensed at too cheap a rate, or they may have objections on business or moral rights grounds to the uses made of their works. Certain kinds of exploitation may injure the value of a work and/or damage the author’s reputation. What remedies will be available in such cases?
It is certain that in some cases works will be used without credit or attribution, in a breach of the author’s moral right to be identified.
Orphan works are defined in 116C as a work for which someone has carried out a diligent search to find the owner of the copyright, or an interest in the copyright, and has failed to find them.
Clause 116A provides for orphan works to be licensed in two ways. Licensing bodies may be authorised to issue licences to users, but the Secretary of State may also grant authorisations directly. Every licensing body that licenses orphan works, either directly or under an extended licensing scheme, must keep an orphan works register, available to the public. Every user who is directly authorised by the Secretary of State must do the same.
Any orphan works scheme would impose on all authors a burden of constant vigilance, on pain of harm to their copyrights. But this system of multiple registers seems calculated to make it as difficult as possible for authors to check to see if any of their works have been misclassed as orphans.
The Government has stated that ‘before a user can apply for a licence to use the work, they must first carry out a diligent search for the original owner of the right’. This is not strictly true. Subclause 116D(4)(b) states that a work may be entered in an orphan works register if ‘the authorised person’ has either carried out a diligent search along lines laid down in the Bill or ‘has reasonable grounds for believing that another person has taken those steps and that the owner of the interest has not been found’. So only the first person interested in licensing a work needs to actually carry out a search for the owner of the rights, and on the basis of that search a work may be entered in more than one register.
Under paragraph 4 of Schedule A1 (Schedule 2 of the Digital Economy Bill), the Secretary of State is empowered, but not compelled, to introduce penalties, including fines, for breaches of the duty to carry out a diligent search/have reasonable grounds to believe that such a search has been conducted before entering a work in an orphan register, and for not removing a work from the register if it appears that the required search was not, after all, carried out, or if the copyright-owner is found. Possible financial penalties are capped at £50,000. It is not clear whether this is an overall cap, or whether, in the event of breaches affecting multiple works, multiple penalties would be imposed.
In the event that the Secretary of State does not take up the powers to impose penalties, there will, apparently, be no restraint on infringers beyond the risk of legal action by a rights-holder. More on that in a moment.
Subclause 116D(7) is very disturbing: it permits the Secretary of State to make regulations that would set aside the requirements for diligent search, or for reasonable belief that such a search had been conducted. All that would be needed would be for an authorised user to list the work in an ‘orphan works’ register. Worse: even if an authorised user were to find the copyright-owner of a work that had been registered as an orphan, there would be no obligation to remove the work from the register.
It is bizarre and disquieting that the orphan works provisions should contain a subclause that entirely subverts the safeguards written into these clauses, and nullifies the definition of an orphan work incorporated in the Bill. It does not inspire the confidence that there ought to be in the good faith intentions behind the orphan works provisions.
Subclause 116D(8) refers forward to Schedule A1: in the event that any authorised user took advantage of regulations made under 116D(7), he/she would remain liable to any penalties imposed under paragraph 4. However, as noted above, there is no requirement that such penalties should be imposed. If the Secretary of State sees fit to make regulations under subclause 116D(7), it is the less likely, presumably, that penalties will be imposed under paragraph 4.
Subclause 116D(8) also states that in cases where the Secretary of State had set aside the requirement for diligent search, etc, the failure to carry out the required steps would nonetheless be ‘actionable as a breach of statutory duty owed to the owner of the [copyright] interest': it would be open to the copyright-owner to take action in the courts.
The National Union of Journalists (NUJ) and other organisations have made sure that the Government is well informed about the difficulties that freelance creators face when attempting to use the courts, especially when suing well-resourced corporate infringers. The Government must be fully aware that under the present arrangements, a right to sue is no protection at all. Most copyright cases brought by freelance creators involve relatively small sums, which nonetheless are important to small creative businesses. It is no longer possible to bring copyright cases in the small claims courts. Even claims involving small amounts must be dealt with in the County Court ‘multi-track process’, and claimants will be liable for substantial costs if they lose their case, or the court makes an award that is lower than, or the same as, an offer made by the defendant. This system favours litigants who have good representation and deep pockets, and companies are well aware of this.
In Canada, where orphan works legislation is in force, licences for the use of works with unlocated copyright-owners are issued by the Copyright Board of Canada, a statutory body. By contrast, clause 116A provides for licences to be issued by licensing societies, and also for certain bodies to self-license.
Licensing societies are answerable to their membership, who are copyright-owners or other rights-holders, with an interest in seeing that any licensing scheme is properly conducted, and that adequate safeguards are in place, and are duly complied with. Nonetheless, it should be clearly laid down that they have a duty of care towards rights-holders who are not members of their society.
Self-licensing arrangements are altogether more problematic. The British Library, the BBC and Channel Four are all rumoured to be planning to seek authorisation to issue themselves licenses for the use of works whose copyright-owners they have failed to locate.
There is a glaring conflict of interest apparent in these cases. Who is going to look out for the interests of the absent copyright-owners? Particular areas of concern are:
- Who will ensure that ‘diligent search’ procedures are properly carried out?
- Who will hold the unclaimed payments in readiness?
- Who will certify the claims of absent rights-holders who come forward, and on what basis?
Licensing societies are active in continually seeking out prospective members and people for whom they hold payments. No obligation is placed on self-licensing bodies under this legislation to search for absent copyright-owners beyond the initial effort; and if the work appears on a copyright register held by someone else, they are even spared from conducting that.
The self-licensing procedure is fraught with dangers for the absent copyright-owners.
[Post revised 18.54 29/03/10]