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

Fri Nov 7 07:07:25 UTC 2014

This could became an interesting chapter for us in the upcoming copyright
reform talks with the new EU-commissioner for the Digital Agenda Günther
Oettinger. Even if his recent statements don't raise to much hope for a
progressive reform, which he wants to "speed up", the orphan works
regulations are propably a field for a win on European level.

Best regards

Jens

2014-11-07 7:56 GMT+01:00 L.Gelauff <lgelauff at gmail.com>:

> So by saying we should overhaul the whole copyright system, you basically
> mean to say there is no way whatsoever to make our lives easier working
> within the existing framework with, for example, only a new orphan works
> directive/law? Because reopening the Berne convention is a huge thing :)
> And if there is no easy way to fix this, is it then really fair to
> critisize governments that they come up with half baked solutions (assuming
> they rule out reopening Berne)?
>
> Lodewijk
>
> On Fri, Nov 7, 2014 at 7:48 AM, Dimitar Parvanov Dimitrov <
> dimitar.parvanov.dimitrov at gmail.com> wrote:
>
>> 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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>>>>>>>> Advocacy_Advisors at lists.wikimedia.org
>>>>>>>> https://lists.wikimedia.org/mailman/listinfo/advocacy_advisors
>>>>>>>>
>>>>>>>>
>>>>>>>>
>>>>>
>>>>> _______________________________________________
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>>>>>
>>>>
>>>>
>>>>
>>>> --
>>>> Luis Villa
>>>> Deputy General Counsel
>>>> Wikimedia Foundation
>>>> 415.839.6885 ext. 6810
>>>>
>>>> *This message may be confidential or legally privileged. If you have
>>>> received it by accident, please delete it and let us know about the
>>>> mistake. As an attorney for the Wikimedia Foundation, for legal/ethical
>>>> reasons I cannot give legal advice to, or serve as a lawyer for, community
>>>> members, volunteers, or staff members in their personal capacity. For more
>>>> on what this means, please see our legal disclaimer
>>>> <https://meta.wikimedia.org/wiki/Wikimedia_Legal_Disclaimer>.*
>>>>
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>>>>
>>>
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>>
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-- 
--
Jens Best
Präsidium
Wikimedia Deutschland e.V.
web: http://www.wikimedia.de
mail: jens.best <http://goog_17221883>@wikimedia.de

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