[Advocacy Advisors] Wikimedia UK response to new UK orphan works rules

[James Heald]

In my view what we need to push for are changes in the copyright term.

In the short term, we should push for "Rule of the Shorter Term" to be 
activated.  This could free some U.S. copyrights in Europe, and some 
European copyrights in the United States -- and, most importantly, 
produce a single harmonised transatlantic standard.

There have been rumours of a Rule of the Shorter Term clause in TPP, to 
put pressure on Canada to lengthen its copyrights.  And it is there in 
Berne, waiting to be activated.  So this is something that could perhaps 
be put on the agenda without too many waves.


More fundamentally, clearance will continue to be a nightmare so long as 
"Life+X" remains the basic standard for copyright terms.

I think we should try to use every chance we can to try to get reform to 
"Life+X, but no longer than Publication+Y" on the agenda, which would 
create an easily verified hard cutoff akin to U.S. year 1923 rule.

I would suggest "Life+70, but no longer than Publication+95".

I am aware that that is far longer than most copyright radicals would seek.

But I think it has three advantages:
(i)   It's already the standard for corporately-made works in the United 
States, so would cause minimum change for those works.

(ii)  For the next four years, everything published 95 years ago will 
already be in the public domain in the United States; so there would be 
no immediate step-change of works becoming public domain there, only a 
slow additional trickle after 2018.

(iii) It puts works into the public domain in time for the centenary of 
their creation to be celebrated, and guarantees the public that 
everything a century old is good to re-use.


Orphan works legislation doesn't grant something that Commons can use 
(or anyone, without the risk of being hit for licence payments down the 
track).

It's the copyright term that ultimately has to be the focus, if we're to 
end clearance hell.  95 years should be enough for anybody.

   -- James.


On 06/11/2014 17:51, Luis Villa wrote:
> Yes, thanks, Stevie!
>
> I do wonder, on the orphan works front, what kind of reform would actually
> work for us given the standards in place on Commons and elsewhere. Even the
> most aggressive proposals I'm aware of end up looking a lot like
> American-style fair use, with a non-zero amount of uncertainty around the
> ability to use going forward. Are there specific proposals for reform in
> the EU that would be acceptable on Commons?[1]
>
> Luis
>
> [1] I think a fair amount of reform of Commons is probably desirable, but
> well outside the scope of this list, so for purposes of discussion lets
> take current levels of enforcement of the precautionary principle for
> granted.
>
> On Thu, Nov 6, 2014 at 8:56 AM, Dimitar Parvanov Dimitrov <
> dimitar.parvanov.dimitrov at gmail.com> wrote:
>
>> Great work! Thanks Stevie and WMUK for keeping your eyes on the ball.
>>
>> Dimi
>>
>> 2014-11-06 16:23 GMT+01:00 Stevie Benton <stevie.benton at wikimedia.org.uk>:
>>
>>> Hello everyone,
>>>
>>> Last week the UK's Intellectual Property Office issued new guidance on
>>> the use of orphan works
>>> <https://www.gov.uk/government/news/uk-opens-access-to-91-million-orphan-works>
>>> .
>>>
>>> Wikimedia UK has just published its response to the new guidance. You can read
>>> the blog post here
>>> <https://blog.wikimedia.org.uk/2014/11/response-to-the-new-ipo-orphan-works-licensing-scheme/>
>>> or view the copy as text below.
>>>
>>> Thank you,
>>>
>>> Stevie
>>>
>>> *Response to the new IPO orphan works licensing scheme*
>>>
>>> The UK’s Intellectual Property Office
>>> <https://www.gov.uk/government/organisations/intellectual-property-office> last
>>> week announced the launch of a new orphan works licensing scheme
>>> <https://www.gov.uk/government/news/uk-opens-access-to-91-million-orphan-works>
>>> .
>>>
>>> This allows individuals and institutions wishing to use a work of
>>> intellectual property where the rights holder cannot be identified to apply
>>> for a licence from the IPO. Licences are awarded where the IPO is satisfied
>>> that the applicant conducted a “diligent” search for the rights holder, and
>>> they have paid a licensing and administration fee.
>>>
>>> This scheme brings forward little that is new. The rule allowing re-use
>>> after diligent search has been part of copyright law in the UK for many
>>> years. The primary purpose of the new licences seems to be to provide
>>> greater certainty to re-users that the searches they have undertaken are
>>> sufficiently extensive to guarantee legal protection should the copyright
>>> owner come forward.
>>>
>>> Searches have to be exceptionally comprehensive before the Intellectual
>>> Property Office will certify them as ‘diligent’ and although there are new
>>> guidelines which will provide greater clarity for cultural institutions,
>>> the imposition of an official fee is concerning.
>>>
>>> Even with this new scheme in place orphan works can still not be easily
>>> used by the Wikimedia projects and the volunteers who write and curate them.
>>>
>>> A real solution to the orphan works problem must await a more radical
>>> approach that goes beyond both this and the existing EU Orphan Works
>>> Directive
>>> <http://ec.europa.eu/internal_market/copyright/orphan_works/index_en.htm>
>>> .
>>>
>>> We believe that this should be addressed as part of a more far-reaching
>>> review of copyright as a whole, at a national and European level. For
>>> example, a simple reduction in copyright terms would instantly make many
>>> works which are currently orphaned available for reuse.
>>>
>>> You can see the recent Free Knowledge Advocacy Group EU position paper on
>>> copyright reform – of which we are a signatory – here
>>> <https://meta.wikimedia.org/wiki/EU_policy/Position_Paper_on_EU_Copyright>
>>> .
>>>
>>> --
>>>
>>> Stevie Benton
>>> Head of External Relations
>>> Wikimedia UK+44 (0) 20 7065 0993 / +44 (0) 7803 505 173
>>> @StevieBenton
>>>
>>> Wikimedia UK is a Company Limited by Guarantee registered in England and Wales, Registered No. 6741827. Registered Charity No.1144513. Registered Office 4th Floor, Development House, 56-64 Leonard Street, London EC2A 4LT. United Kingdom. Wikimedia UK is the UK chapter of a global Wikimedia movement. The Wikimedia projects are run by the Wikimedia Foundation (who operate Wikipedia, amongst other projects).
>>>
>>> *Wikimedia UK is an independent non-profit charity with no legal control over Wikipedia nor responsibility for its contents.*
>>>
>>>
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>>>
>>>