Tuesday, 30 April 2013

Orphan Works, the Enterprise and Regulatory Reform Act

There's quite a bit of consternation right now about changes in the Enterprise and Regulatory Reform Act not long passed in to law. With these sort of changes, where the "copyright" of a work is under threat, as with Instagram, people tend to grab the wrong end of the stick and liberally wave it about before calming down.

I just wanted to take a moment to look at this law, why it exists, and what it really means for all of your pictures of coffee and donuts.

First of all, understand what "Orphan Works" are intended to be. An Orphan Work is one that no copyright holder can be found for. The concern with this new law has come about from the fact that it's incredibly easy for details of who owns copyright on an image to be lost when it is transferred to some web services.

Naturally, some have jumped to mean this is the government providing a way through which unscrupulous companies can now use our work without permission, and for their own profit without your seeing a penny. If the argument is familiar it is because it is the exact same one rolled out any time copyright issues are dealt with, it is the primary fear of the copyright holder, the bogeyman of the photographic artist world.

The realities are somewhat more balanced and reasonable. Below I will reproduce the section of the law (as far as I can see it, the Act hasn't yet been published as of writing this) to explain what's going on...

116A Power to provide for licensing of orphan works

(1) The Secretary of State may by regulations provide for the grant of licences in respect of works that qualify as orphan works under the regulations.

(2) The regulations may—

(a) specify a person or a description of persons authorised to grant licences, or
(b) provide for a person designated in the regulations to specify a person or a description of persons authorised to grant licences

(3) The regulations must provide that, for a work to qualify as an orphan work, it is a requirement that the owner of copyright in it has not been found after a diligent search made in accordance with the regulations.

(4) The regulations may provide for the granting of licences to do, or authorise the doing of, any act restricted by copyright that would otherwise require the consent of the missing owner.

(5) The regulations must provide for any licence—

(a) to have effect as if granted by the missing owner;
(b) not to give exclusive rights;
(c) not to be granted to a person authorised to grant licences.

(6) The regulations may apply to a work although it is not known whether copyright subsists in it, and references to a missing owner and a right or interest of a missing owner are to be read as including references to a supposed owner and a supposed right or interest.

The section above lays the ground work, and says that regulations (dealt with in a separate piece of legislation, statutory legislation that usually requires a much lower threshold to pass in to law, but still legislation that can be lobbied on an influenced *hint hint*) need to be created to grant the government the right to allow people to use material where the copyright holder of that material can't be found.

This will only ever apply to work where the copyright holder can't be found, and the devil will be in the regulatory detail. What is a "diligent search"? No-one knows yet, it's still to be written. It'd be good if this ended up being some form of "public notice" style service where those who wanted to license work had to publish their intent for a notice period to license the works which would provide the particularly cautious a place to regularly check for their work. The realities though, as some have described, is that it'll be incredibly time consuming to need to keep checking to see if your work is being considered as an orphan work just because the ownership data has been stripped from it.

Far from being the abusers, I see those like Instagram and Flickr being protectors of copyright in this instance as the provision of a source location for online orphan works in any application for getting a license would very quickly and easily put a stop on work uploaded via such sites to be legitimately claimed as being without a known copyright holder. The very terms of service on these sites imply that you are the rights holder for the work you upload and that you grant them the license to use the images on their service.

How it can be construed that your images uploaded under your username on a media sharing service, intrinsically linked to your user profile, will be licensed through such regulations is extremely confusing to me.

It's also important to note that some safeguards are already built in here, to ensure that no-one can accidentally lose the rights to their work through them being orphaned, and not to be licensed to a body that essentially sub-licenses material. iStock and Getty are not going to be able to go on the hunt for orphan works to sell!

116C General provision about licensing under sections 116A and 116B

(1) This section and section 116D apply to regulations under sections 116A and 116B.

(2) The regulations may provide for a body to be or remain authorised to grant licences only if specified requirements are met, and for a question whether they are met to be determined by a person, and in a manner, specified in the regulations.

(3) The regulations may specify other matters to be taken into account in any decision to be made under the regulations as to whether to authorise a person to grant licences.

(4) The regulations must provide for the treatment of any royalties or other sums paid in respect of a licence, including—

(a) the deduction of administrative costs;
(b) the period for which sums must be held;
(c) the treatment of sums after that period (as bona vacantia or otherwise).

(5) The regulations must provide for circumstances in which an authorisation to grant licences may be withdrawn, and for determining the rights and obligations of any person if an authorisation is withdrawn.

(6) The regulations may include other provision for the purposes of authorisation and licensing, including in particular provision—

(a) for determining the rights and obligations of any person if a work ceases to qualify as an orphan work (or ceases to qualify by reference to any copyright owner), or if a rights owner exercises the right referred to in section 116B(3), while a licence is in force;
(b) about maintenance of registers and access to them;
(c) permitting the use of a work for incidental purposes including an application or search;
(d) for a right conferred by section 77 to be treated as having been asserted in accordance with section 78;
(e) for the payment of fees to cover administrative expenses.

While sections 1-3 are just laying out more groundwork, it's the sections 4-6 that are important. Section 4 says that money has to be kept, for a certain period of time, as if the money was being paid to the copyright holder. Sections 5 and 6 say that if someone comes forward and makes the licensing body aware that they are the copyright holder, there has to be a way for them to take back their copyright if they wish, to remove the licensing rights conferred to the 3rd party.

It is not clear from this legislation alone, but the intention would be that those accrued royalties can then be paid to the true copyright holder when they are found, or come forward.

What's the effect?

For the vast majority of people, I don't see how this affects them at all. The idea that uploading media to a website with an identity of some kind automatically ties you to that piece of work, you are even asked when uploading on most of these sites to confirm that you are the copyright holder. For all intents and purposes, as far as the systems are concerned, you or your persona is the owner of that material.

For those who are having their material stolen and used without permission this also makes no difference. People are using works without the right permission all the time, this law isn't going to suddenly make them sit up and say "Hey, I can actually pay to use this now, like I could before". At best there may well be some people grudgingly using work that they *want* to pay the copyright holder for but genuinely can't find a way to work out who that is.

For them this system is ideal, they no longer break the law and they get to put money in the pot should the owner be found. And the money is kept, so for those that do find that their work is being used without permission they may actually have a simpler route to getting payment for the use of that work. There is an argument here that they may not get what they feel they are owed for the use, and can obviously never get back that their work may have been used in a way that they disagree with....but these are issues that already exist with copyright infringement, this law doesn't introduce or exacerbate this problem.

In all honesty I can't find the same level of danger in this legislation that those over at the Register feel they've seen, I don't agree with their analysis that the only two options are to take a costly registration route, or to remove your work from the internet. Copyright is your right at the moment you create, you don't need to register it anywhere for you to be the owner.

One other option available to you is to watermark your work online, to make it clear that you are the owner. This works well for photos and video perhaps, but less so for music. Another option still is to, as I've said a few times above, ensure that the services you use recognise that work you produce through the service is work that you are copyright holder for, and that you are contactable via those services.

The answers aren't ideal, yet the opportunity is here to ensure ministers know that there is this body of concern about online material. It feels to me to be unhelpful to yet again paint this as evil corporations vs the weak copyright holder, the law definitely isn't framed in those terms. The devil will be in the detail, but that is yet to be written...maybe we should do something more constructive than condemn the government already for their supposed destruction of all creativity on the web?

As usual, feel free to point out errors, and let me know your views!