UK.gov rushes out broken 'Orphan Works' system as EU Directive comes in
It was there all along! Well, sort of there
+Comment The Government has rushed out its controversial “Orphan Works” licencing scheme – but it’s broken on arrival, and if it doesn't start working almost at once it probably won't get the chance.
The rushed release is no coincidence. It means, perhaps, that the UK can technically claim that it had a “pre-existing Orphan Works scheme” before October 29th, today. That’s when the EU Directive on Orphan Works (2012/28/EU) comes into effect. The directive allows EU member states to preserve any Orphan Works schemes that they might already have rather than follow the Directive to the letter.
The UK stance on orphan works has long raised hackles among rights owners and creators, especially photographers both professional and amateur. Most current “orphan works” are not historical images locked away in vaults, or dusty old books whose authors cannot be located: but rather digital photos with the identifying metadata purposely stripped off.
Large users of these so-called “orphans” such as Google Images, the BBC or Sky remove this metadata on an industrial scale. And, because most of these images have some market value, photographers have argued that the opportunity to use them without paying has benefited huge corporate users at the expense of creators.
The fact is, there's no excuse for the corporations' claims that they can't identify image owners. Using modern image matching technology like PicScout, very few pictures should really be “orphan works”.
But the British government - or, more specifically in this case, its Intellectual Property Office - believes passionately that the UK economy will bloom like a rose if web giants and startups are allowed to use data/content created by others without restriction. The classic case, of course, is Google, which hoovers up the entire web and places money-making adverts next to selected snippets of other people's text. The EU isn't quite as enamoured of this general idea: hence the rush to establish an apparent UK orphan-works system ahead of the Brussels directive coming into force.
The Scheme launched by the IPO today is described as a “Registry”. But it isn't even intended to allow images to be searched.
“Image search is broken by design – there’s no way to search for an image lacking metadata, which is the definition of an orphan work. It’s a massive fail,” says Paul Ellis of photographers’ rights group Stop 43.
Sources familiar with the scheme have told the Register that those responsible for it ignored advice to delay the scheme until it could operate better with external registries and image tools. So the UK registry won’t integrate with the forthcoming Copyright Hub.
“It illustrates that they’re in a rush," says Ellis.
There are other signs of haste, too. The site throws up security warnings, and once you arrive it tells you your search has failed – before you’ve even made one. But relax - whatever you try to search for, it'll report failure.
“There are no applications to search at this time,” an IPO official told Stop 43.
Meaning: Our search box has nothing attached to it. So you can sit there typing queries into it all day, and every result will be the same. Nothing found.
For a Government that prides itself on how well it "gets digital" this is a little embarrassing.
The new Orphan Works registry shows a failed result before you've even searched - and no results for anything at all.
Photographers' groups point out that the culture sector already has an exception from EU rule for digitising works for preservation, and also that culture and academia can take advantage of wider exceptions for citation, making the need for the UK Orphan Project moot - unless it's intended simply to let content slurpers have an official rubber stamp for their actions.
Funnily enough, the photographers also wanted orphan works freed – when orphan works plans were discussed (then defeated) in 2010: but the 'togs called for a better set of solutions. Stop43's plan was essentially twofold: the stripping of metadata on a massive scale – which already breaks the Copyright Act - should be penalised, and "diligent search" for image owners should make use of proper technical solutions rather than simply being a pro-forma claim of ignorance as to ownership. This could have satisfied the demand for historical orphan works, while protecting people who put images on the internet.
What the UK has instead received today is complex, bureaucratic and - crucially - isn't working. Even by the standards of Government IT projects, launching a search tool that doesn’t return any searches – for anything - surely merits some kind of special award for bungling. “The Golden Quilty”, perhaps?
Given that it will scarcely have existed before the EU Directive comes into force, and will probably not have been functional, you have to wonder just how strong any UK claim of its own pre-existing orphan works system can actually be. ®