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

Thu Nov 6 18:56:02 UTC 2014

Yes, should have said "fixes specific to orphan works". Obviously shorter
(or at least not effectively eternal!) terms is a clear-cut priority that
solves many kinds of problems.

Luis

On Thu, Nov 6, 2014 at 10:50 AM, James Heald <j.heald at ucl.ac.uk> wrote:

> 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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>>>>
>>>>
>>>>
>
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-- 
Luis Villa
Deputy General Counsel
Wikimedia Foundation
415.839.6885 ext. 6810

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