Sooner or later, anyone planning to digitise works created in the last hundred years or so has to face the problem of what to do with those which are still in copyright but for which no copyright holder can be traced: so-called “orphan works“. On 17 March, three of us travelled a few hundred yards down the road to attend a workshop on this very issue. The workshop was arranged as part of the “Who owns the Orphans?” project from the Beyond Text programme, sponsored by the UK Arts and Humanities Research Council. The morning focused on the highlights of the interim report which has been produced while the afternoon was given over to panel discussions on different aspects of the problem. The attendees came from a range of perspectives, including representatives from libraries, archives, museums and galleries, as well as creators of content – authors and photographers – who brought a different angle to the discussions.
The day began with an admission that it was tricky even just to define orphan works, and it quickly became evident that there is no easy solution to the problem. Various approaches were proposed, including compulsory registration and blanket licensing schemes, but all have their drawbacks and none really address the problem of the historical orphan works which exist in all collections. Many institutions admitted to taking a risk-managed approach to orphan works in order to maximise what could be made available to the public online. The sense from the participants was that as long as the material in question was not of high commercial value, then making it available after a due diligence search for the copyright holder had drawn a blank might be infringing copyright but was preferable to not making these cultural works widely available.
Compulsory registration of creative works is already the norm for the music industry, hence they do not have the same problems with orphan works faced by much of the cultural sector. However, imposing compulsory registration on other creators such as authors and photographers could be more difficult: the records of copyright registration which ended in 1912 show that few people actually bothered to register their work last time compulsory registration existed. In any case, this still leaves the problem of tracing subsequent copyright holders after the death of the original creator and it does not alter the position of historical orphan works.
Licensing schemes are favoured by the EU, but they also have their problems, both for authors who wish to retain control of their work and for cultural institutions who are reluctant to pay collecting societies to license works where they have no contact with the author or their heirs. Some collecting societies might be happy to license orphan works, setting aside money to pay out in the event of a copyright holder making themselves known. However, although this would in effect act to indemnify the institution who licenses the material, it was pointed out that this would really be no different to taking out insurance.
While no-one wants to infringe copyright, if a copyright holder cannot be traced after a due diligence search has taken place, most people working in the cultural sector consider that making material available to the public online is part of their obligation as guardians of the material. Some orphan works may have low commercial value, or their value may come from their position as part of a whole collection. It was also noted that people who have inherited copyright in these works are often unaware that they own rights in items, but once the work becomes commercially valuable, these rightsholders magically appear.
It seems likely that current practices will continue for the time being, due to a lack of viable alternatives. However, the outcome of the Hargreaves Review may have an impact on how orphan works are dealt with in the future, and perhaps the final report from the “Who Owns the Orphans?” project will be able to suggest practical solutions to what is acknowledged to be an issue across the cultural sector.
Written by Caroline Herbert