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

Fri Nov 7 06:48:07 UTC 2014

HI all,

In my view the most effective global solution to the issue for the future
would be an opt-in system for copyright. As for current works, a "use it or
lose it" mechanism could also go a long way.

The reason we've focused on the other two core topics for now is that the
Orphan Works Directive was passed in 2012, so it will take at least another
2-3 years to convince anyone that it should be reopened. What we should do
for now is gather data and case studies.

As to its implementation, the Directive is... the best word I have is
"half-baked". The current non-commercial clause in the Directive is just
taking us out of the game before we can even start trying. Member States
don't have a really good way of transposing it. I am sharing Wikimedia
Deutschland's recommendations to their national ministry from back in 2012,
as it is the most detailed statement by any Wikimedia embodiment on that
topic, as far as I know. [1]

Dimi

2014-11-06 22:57 GMT+01:00 L.Gelauff <lgelauff at gmail.com>:

> I had very much a similar thought like Luis, I cannot recall a satisfying
> proposal for orphan works, let alone one that would be acceptable to other
> parties too. It sounds great to say we should shorten terms, but of course
> this is the solution least likely to thrive.
>
> The only thing I can imagine that would remotely 'help' us, is that one
> could ask official confirmation of some body that a work should be
> considered as published anonymously. In that case, publication+70 applies,
> which at the very least removes a lot of uncertainty. At least for the
> category where the author is unclear, this might legally make sense. Of
> course this would not go for works that are orphaned because there are too
> many heirs (copyright splintered over many people) or where their relatives
> are unclear, even though the author was.
>
> But I would be very interested to hear more effective proposals for orphan
> works! I always find it slightly awkward to say something should be better,
> without specifying how it should be improved.
>
> Lodewijk
>
> On Thu, Nov 6, 2014 at 7:56 PM, Luis Villa <lvilla at wikimedia.org> wrote:
>
>> 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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