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EU greases up orphan works copyright loophole for Big Culture

'Non-commercial' use permitted, unlike UK bureaucrats' landgrab

The smart choice: opportunity from uncertainty

The European Parliament has voted to approve new copyright rules on artistic works that can't be identified, so-called 'orphan works'. The proposals allows Big Culture to digitise works protected by copyright. The proposal does not permit commercial exploitations of the unidentified works, except by museums, archives and libraries and only to fund specific digitisation programmes.

It's a live issue because of the potential impact on jobs. The emotive term 'orphan work' is quite misleading: any work for which an author can't readily be identified - and that includes almost all photographs and illustrations bobbing about on the web - is an 'orphan' work, so the threat to the livelihoods of snappers and illustrators from poorly worded or malicious legislation is very real.

The orphan work proposal the Parliament approved yesterday would permit a "good faith" search by a cultural institution, but a search could only be conducted by an authorised party, only in the work's originating country, and the results of the search would have to be recorded for all to see.

The next step is adoption by the European Council, after which member states such as the UK will incorporate it into law. Plain sailing, then?

Not quite.

Race to the bottom

Any European orphan works proposal would not replace legislation that a member state may already have in place. The UK doesn't have a law governing orphan works, so bureaucrats are frantically trying to introduce one before the approved European solution makes it irrelevant. It's a race against the clock. Radical orphan works proposals written by the Intellectual Property Office (the former Patent Office) have already been smuggled into the Enterprise and Regulatory Reform Bill, even though the "consultation" on them is still open.

These proposals turn international copyright protections for authors upside down, and permit the commercial exploitation of an unidentified work without the author's permission - if you haven't opted out. Amateur snappers who post to Facebook or Flickr would also have to opt-out - registering each image in a "hands off" database. The presumption of international law and treaty is that no one can use your work unless you allow them to – and woe betide anyone who does.

(That's the theory, anyway. It's harder in practice for an individual to enforce their rights).

A consequence of the UK's go-it-alone orphan works proposals is that anyone could exploit an unidentified artistic work – except the person who created it.

The solution lies in creating databases of works which would identify the authors - thanks to technology this can largely be automated - and new codes of practice to prevent cynical publishers and broadcasters from creating new orphan works. Richard Hooper, appointed by the UK government to oversee new copyright exchanges, called for the media to stop stripping out identifying information, and stop using works to which no metadata has been attached.

Copyright exchanges, as recommended by Hargreaves, need no new legislation, cost no public money, and need no bureaucratic oversight – so you can see why the radicals at the IPO hate them. The IPO has tried to introduce orphan works legislation before, and failed, and this might be their last chance. In 2010 the Digital Economy Bill (as it then was) contained orphan works proposals, but was rejected during wash-up.

Paul Ellis of the group Photographers for a Digital Economy told The Register the European orphans proposal was more "cautious and thoughtful" than the UK's orphan kite, and satisfied the demands of the CHS (cultural and heritage sector) without impacting British jobs – because it doesn't permit a commercial free-for-all.

"The government should be wary of anything that impacts growth," he told us. ®

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