Copyright Holders Will Define Details Of UK's Orphan Works Bill, But Not The Public

from the same-old-same-old dept

Wed, May 15th 2013 12:02am — Glyn Moody

The UK's new orphan works legislation allows works to be classed as orphans only after a "diligent search" has been conducted to find the owner. The fear expressed by some is that this "diligent" search won't be very diligent, allowing publishers to use materials that aren't orphans. That's actually wrong for a number of reasons, as Techdirt explained recently, but the continuing furor from photographers in particular has been such that the UK's Intellectual Property Office (IPO) felt compelled to issue a document entitled "The Enterprise and Regulatory Reform Act 2013 –Your photos and you" (pdf) explaining how the system would work, and why the fears were unjustified.

However, that document still does not answer the central question of what "diligent" will mean. A post on Out-Law.com provides some information about how this will be addressed:

"The 'diligent search' requirement will be defined through a working group so that it can reflect current best practice across all sectors," a spokesperson for the IPO told Out-Law.com. "This will make sure that any requirements are practical and manageable. The working group will include representation from creators, including the photography sectors, and users such as museums and archives."

Reading that made me wonder who exactly was on this working group, so I contacted the IPO's press office asking for details. Here's the list of organizations they kindly sent me: Society of London Theatre and Theatrical Management Association
BBC Publishers Content Forum
JISC
National Museum Directors' Council (NMDC)
Copyright Licensing Agency
Musicians' Union
Creators Rights Alliance
British Association of Picture Libraries & Archives
British Equity Collecting Society
Focal
Authors Licensing & Collecting Society
The National Archives
Stop 43
Libraries and Archives Copyright Alliance
The Association of Photographers
British Screen Advisory Council
Publishers Licensing Society
The Association of Illustrators
Society of Authors
Directors UK
Producers Alliance for Cinema & Television
UK Music
Association of Authors Agents
There are two things that struck me about that list. One is the appearance of Stop 43, probably the most vociferous of the photographer groups that have been complaining about the new orphan works law. Let's hope that its presence here, and thus its ability to contribute to the definition of "diligent", means that it drops the rhetoric about how the UK government has "reversed the normal workings of copyright," when that's simply not the case.

The other thing is that in contrast to the two groups representing photographers, there is not a single advocate for the somewhat more populous general public. Of course, that's absolutely par for the course: the public is routinely overlooked whenever it comes to asking "stakeholders" what they think about proposed changes to copyright. The UK's welcome move to liberate hostage works at last would have been the perfect opportunity to break yet more new ground by engaging directly with groups representing the 60 million people whose views are never properly considered. Sadly, that seems not to be happening.

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Filed Under: copyright, diligent search, orphan works, photographers, public, public interest, uk

46 Comments

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Anonymous Coward, 15 May 2013 @ 1:23am

But you forget, sir...
That's what the politicians are there for. They are the ones who are supposed to be representing the public and the commons.
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- Zakida Paul (profile), 15 May 2013 @ 1:30am
  
  Re: But you forget, sir...
  Politicians have not represented the public in my lifetime (30 years).
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- Not an Electronic Rodent (profile), 15 May 2013 @ 4:47am
  
  Re: But you forget, sir...
  They are the ones who are supposed to be representing the public and the commons.
  Yeah... not so much... some figures to back up the detected sarcasm perhaps?
  
  UK 2010 general election: 65% voter turnout, Conservative vote: 36%, LibDem vote: 23%
  
  Unless my maths is faulty, that means that only around 39% of the population voted for anyone in government at all and even if you make the staggeringly false mental leap as to assume that a vote means you are "represented" and agree with what is done in your name, only a maximum of 24% of "the public" are actually "represented" on any given issue.
  
  Me, I think calling that "representing the public" is stretching reality more than perhaps a little... but then that's what politicians do best.
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- Anonymous Coward, 15 May 2013 @ 5:25am
  
  Re: But you forget, sir...
  Elections are not about electing a representative, but rather choosing who rules. A representative would consult with those they represent, while politicians ask people to elect them so they can carry out the policies that their party proposed.
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- jupiterkansas (profile), 15 May 2013 @ 8:55am
  
  Re: But you forget, sir...
  Even if that were the case, I don't see any politicians on that list. All I see are a bunch of organizations that would financially benefit from a lack of orphan works.
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- Richard (profile), 15 May 2013 @ 11:04am
  
  Re: But you forget, sir...
  That's what the politicians are there for. They are the ones who are supposed to be representing the public and the commons.
  
  And you forget , sir that your argument has been made before on this forum and roundly debunked on amny occasions.
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  - Richard (profile), 15 May 2013 @ 11:07am
    
    Re: Re: But you forget, sir...
    In particular you forget that rightsholders are also a part of the public and therefore (by your argument) should not need any special representation.
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Anonymous Coward, 15 May 2013 @ 1:44am

I kind of like the governments idea of orphaned.

I can walk outside and yell hey creator of whatever have you orphaned your project? If they do not respond I can steal their work.

I just have two questions, does it matter that I live in the country? Also how loud do I need to yell for it to be considered a diligent attempt?
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- Pragmatic, 15 May 2013 @ 3:27am
  
  Re:
  First of all, that's not how it's done. When I wanted to use a photo I liked that I'd seen on Flickr for a commercial project, all I had to do was glance up at the name of the account, then contact the person to ask for permission to use it. Permission granted, photo used, creator credited.
  
  If the creator puts his or her details up online with the photo there is no excuse not to contact and ask him or her. A Google Image search will quickly help to find who the image was originally posted or created by, so there's no excuse that you can't find the creator UNLESS he or she has not put his or her details up anywhere.
  
  That said, there are plenty of Creative Commons/licence-free images available and I usually use those.
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  - jupiterkansas (profile), 15 May 2013 @ 8:59am
    
    Re: Re:
    You're assuming the person that uploaded the photo owns the copyright. A lot of what is on flickr, esp. the for the kind of old photos that would be considered orphan works, the copyright holder if far more difficult to find than a simple image search.
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- Richard (profile), 15 May 2013 @ 11:09am
  
  Re:
  I can walk outside and yell hey creator of whatever have you orphaned your project? If they do not respond I can steal their work.
  
  You forget that - in this proposed law- you still have to PAY for the work so that if the rightsholder turns up later they will get the money.
  
  This is only concerned with preventing the copyright system from blocking the creation of derivative works by default.
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Anonymous Coward, 15 May 2013 @ 1:56am

The public are the enemies of copyright, why if it wasn't for the law poor creators would not receive a penny for their works.
/s
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- Anonymous Coward, 15 May 2013 @ 2:27am
  
  Re:
  the public are the beneficiaries of copyright.
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  - Anonymous Coward, 15 May 2013 @ 2:29am
    
    Re: Re:
    the public are also the holders of copyright, if you have copyright on something, you do not cease to be 'the public'.
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  - Zakida Paul (profile), 15 May 2013 @ 3:17am
    
    Re: Re:
    How do you work that out?
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nospacesorspecialcharacters (profile), 15 May 2013 @ 1:59am

Using a screwdriver to bang in a nail
I think the core failure of this from the outset is not having representation for the public. As history has shown time and again, there's nothing to stop this select group from overreaching their purpose and becoming sole arbitrator of what is or isn't a copyrighted work.

The big publishers will make sure they can grab as much orphan works as possible, whilst diligently protecting their own (remixed from orphan) works - it's like putting the fox in charge of the chickens!

A better way of doing this would have been to have an open registry where anyone who finds an orphan work and wants to use it must register publicly and it should be available for, say 30 days, for someone to claim ownership. That way any member of the public can be involved.

There should also be a requirement for all publishers to provide a source (author/orphan), by law, on any work they use - which I gather is the main fear for photographers.

Ultimately, though, it would be easier if we just go back to registration for copyrights. In a world where millions of photos exist of the Eiffel Tower, how could anyone claim (prove) their copyright on a specific photo (unless they put something unique in it).

Technology has provided the means for making your work very easy to replicate, but it has also taken an audience that was once local and made it global. It has also made your work very easy to produce in the first place.

In the 1983 you had to pay upfront expense for a gallery, rely on advertising and local word of mouth; maybe have 1 or 2 people forge your work and 10,000 people may buy it.

In 2013 you zero costs for a gallery, can be seen worldwide, and 1 or 2 million people may copy your work but 100,000 people may buy it - there is no loss, just increase in piracy from people who would never have seen or bought anyway.

Should copyright even exist on things that can be created, copied and distributed worldwide within minutes?
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- Anonymous Coward, 15 May 2013 @ 3:56am
  
  Re: Using a screwdriver to bang in a nail
  No, it's more akin to using the public's collective genitalia to pound in a nail - painful for the public as private interests yet again get to steal from the public domain and orphaned works.
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Anonymous Coward, 15 May 2013 @ 2:15am

"The UK's new orphan works legislation allows works to be classed as orphans only after a "diligent search" has been conducted to find the owner."

Here's a thought:

Make copyright NOT automatic. Make people register their copyright, if they so wish.

Problem solved.
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Anonymous Coward, 15 May 2013 @ 2:18am

However, that document still does not answer the central question of what "diligent" will mean.

True, if you don't read the first line of the document !!!

"The 'diligent search' requirement will be defined through a working group so that it can reflect current best practice across all sectors,"

So "diligent" will be what is defined though a working group.

Seems pretty clear to me.. to Masnick not so much.
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- Anonymous Coward, 15 May 2013 @ 2:42am
  
  Re:
  diligent [dee-lee-jet-end...or something]
  noun? adj? We don't know
  
  1. Definition pending
  
  Yep, that is useful.
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- PaulT (profile), 15 May 2013 @ 3:02am
  
  Re:
  So, you admit that there's no definition yet, and that the definition will not be made clear until some undefined moment in the future (by which time the law will probably already be in place). In other words, we don't know, which is exactly what the author of the article (which was not Mike) is saying.
  
  Well, you can't even correctly identify the author he's attacking, so no surprise that you're unable to understand the actual problem being discussed. Again.
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Anonymous Coward, 15 May 2013 @ 2:25am

it's about time you learnt what a 'stakeholder' is
Look it up if you have too, I am sure every "Editor" has a dictionary or the ability to look up the definition of words, and anyone with any understanding of business or commerce, know the general public are not 'stakeholders'.

General public are consumers, stakeholders are stakeholders, in that they have a stake in the holding.
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- That One Guy (profile), 15 May 2013 @ 2:43am
  
  Re: it's about time you learnt what a 'stakeholder' is
  Stakeholder
  (noun)
  1. A person or group owning a significant percentage of a company's shares
  2. A person or group not owning shares in an enterprise but affected by or having an interest in its operations, such as the employees, customers, local community, etc
  
  Yup, looks like you're right, the public couldn't possible have any interest in proceedings like this, as they aren't stakeholders. /s
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  - Anonymous Coward, 15 May 2013 @ 3:38am
    
    Re: Re: it's about time you learnt what a 'stakeholder' is
    Ouch!
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horse with no name, 15 May 2013 @ 2:48am

Shocking
It's shocking to imagine that the people elected officials to run the country and to appoint people to represent the people at these meetings... and then "the people" feel like they are not represented.

How about instead we have them do a door to door tour, making sure they consult with all of the public. You know, each and every one.
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- Zakida Paul (profile), 15 May 2013 @ 3:16am
  
  Re: Shocking
  Except that copyright was never mentioned in the election so the public cannot know a politician's stance on it when they are voting. This means that the public are NOT being properly represented when it comes to copyright.
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  - Anonymous Coward, 15 May 2013 @ 7:27am
    
    Re: Re: Shocking
    I also like the idea that once you vote for someone, well that's it, now you can't say shit. As if democracy begins and ends in the voting booth.
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- nospacesorspecialcharacters (profile), 15 May 2013 @ 4:16am
  
  Re: Shocking
  Switzerland seems to manage fine with public referendums.
  
  BTW: I'm taking your orphan horse, if you have a problem with that then unless you're a member of the "working group", tough!
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- Anonymous Coward, 15 May 2013 @ 4:23am
  
  Re: Shocking
  It's shocking to imagine that you haven't already caught on that this constantly happens in politics. Keep singing John Steele's praises, you unimaginative buffoon.
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- Ninja (profile), 15 May 2013 @ 5:17am
  
  Re: Shocking
  You see, I would agree with you if OTHER stakeholders were barred too... If they can listen to the MAFIAA surely they can listen to groups representing the general public (such as EFF). And don't give me that bullshit that EFF doesn't represent you. The MAFIAA also doesn't represent many artists.
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  - horse with no name, 15 May 2013 @ 5:22am
    
    Re: Re: Shocking
    The thing is Ninja that the public is one of the stakeholders, and they are represented at the table by the politicians they elected or the people those politicians appoint to do the job.
    
    Can you tell me again how much copyright material the EFF produces, or how many artists it has working in their system, or how many billions of dollars they have sold under the copyright system? Oh yeah, none.
    
    EFF would be useless at the table, and they would likely work like jury nullification.
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    - Not an Electronic Rodent (profile), 15 May 2013 @ 5:46am
      
      Re: Re: Re: Shocking
      Can't tell if that is supposed to be sarcastic or not (oh hell I hope so!), but marked as funny anyway...
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    - Anonymous Coward, 15 May 2013 @ 6:12am
      
      Re: Re: Re: Shocking
      How much copyright material has the RIAA produced?
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      - Anonymous Coward, 15 May 2013 @ 6:27am
        
        Re: Re: Re: Re: Shocking
        Well, their estimate of the cost of piracy does not qualify as fact, so it is copyrighted.
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    - Ninja (profile), 15 May 2013 @ 7:22am
      
      Re: Re: Re: Shocking
      Can you tell me again how much copyright material the EFF produces, or how many artists it has working in their system, or how many billions of dollars they have sold under the copyright system? Oh yeah, none.
      
      Well, I think they tend to put their content in very loose copyright terms (creative commons or public domain) but you have to be very dishonest to ignore all the articles, papers, videos (the mean-spirited pie being just published here in TD) and many other examples. You don`t know the EFF much do you? Also, refrain from using the term copyright material. Copyright is not needed for creativity to work.
      
      EFF would be useless at the table, and they would likely work like jury nullification.
      
      Yeah, right. Why not let the big chemical companies have their say in environmental issues then? After all they know what they are doing right, unlike environmental protection groups, right? Surely you don`t mind some mercury running through your veins... See how absurd your assumption is? I think you don`t but others will see it ;)
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    - RD, 15 May 2013 @ 8:14am
      
      Re: Re: Re: Shocking
      "Can you tell me again how much copyright material the EFF produces, or how many artists it has working in their system, or how many billions of dollars they have sold under the copyright system? Oh yeah, none. "
      
      Oh you mean like the "stakeholders" such as the RIAA, MPAA, collection societies, lobbyists, and bought-and-paid-for politicians? After all, they are such large producers of copyrighted material.
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      - Anonymous Coward, 15 May 2013 @ 9:44am
        
        Re: Re: Re: Re: Shocking
        I think he was talk strictly about the people in charge of the RIAA and not it's members.
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    - John Fenderson (profile), 15 May 2013 @ 11:02am
      
      Re: Re: Re: Shocking
      The thing is Ninja that the public is one of the stakeholders, and they are represented at the table by the politicians they elected or the people those politicians appoint to do the job.
      
      Did you have as much difficulty maintaining a straight face when you wrote this as I had when reading it?
      
      Politicians and those they appoint are definitely not representing the public. They are representing their donors.
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    - Richard (profile), 15 May 2013 @ 11:15am
      
      Re: Re: Re: Shocking
      The thing is Ninja that the public is one of the stakeholders, and they are represented at the table by the politicians they elected or the people those politicians appoint to do the job.
      
      So, according to you, rightsholders and the people that run their organisations like MAFIAA etc don't have a vote. LAst time I looked they still did so I conclude that they are also represented by the politicians and so shouldn't get another voice around the table.
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M. Alan Thomas II (profile), 15 May 2013 @ 2:51am

Not a single advocate for the public? Is the Libraries and Archives Copyright Alliance so different from its U.S. counterpart?

(My answer: Not as far as I can tell.)

I'm less sure where The National Archives and the National Museum Directors' Council fall on that spectrum, but speaking as a librarian, I'd usually consider those allied professions and assume a similar pro-public-access-to-information ethic.
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Zakida Paul (profile), 15 May 2013 @ 3:13am

The Tory way
Ignore the wishes and concerns of the public and push along with your own agenda.
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- Not an Electronic Rodent (profile), 15 May 2013 @ 9:17am
  
  Re: The Tory way
  The Tory way?? Name a political party that's different.
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Ninja (profile), 15 May 2013 @ 3:57am

there is not a single advocate for the somewhat more populous general public

These people are obliged to pay taxes but they don't contribute financially with an extra to the pockets of the politicians so why bother?
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Anonymous Coward, 15 May 2013 @ 5:49am

Here in the us the founders already solved this problem by making copyright 14 + 14 years.

If the copyright holder didn;t renew the work was made free and open for all to archive, derive from and distribute

Sadly the maximists broke the system
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- DanZee (profile), 15 May 2013 @ 9:16am
  
  I Agree
  I agree. Even the old system where you renewed a copyright after 27 years worked. 70% of works were never renewed because they held no value for their creators. Other people should be allowed to come along and use them as they want.
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Dave, 16 May 2013 @ 12:05pm

Problem
I would certainly beg to differ that this law is not going to be a problem. The term "diligent search" is a typical open-ended phrase used by crackpot politicians who don't live in the real world and expect situations to more-or-less resolve themselves by the application of a few choice ethereal phrases. To expect people to spend umpteen hours searching for the owner of a photo or other creative work is, quite frankly, totally ludicrous. It's just not going to happen. If a copyright organisation website has pirated pictures on it, what hope is there? I'd really like to know where these politicians get their alleged inspiration for introducing bills that appear to do nothing for their grass-roots constituents but everything for big business!
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