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

Fri Nov 7 10:59:13 UTC 2014

When I consider this issue, I tend to come back to the fact that orphan
works tend to be orphans for a reason - either the rights holder is no
longer around, or nobody knows (or can easily find) the appropriate person
or people. I think the idea of a diligent search is a good one, and is a
good way to demonstrate that those who want to use orphan works are doing
so responsibly and appropriately.

However, I don't like the idea of the cost involved in acquiring a license.
A solution that could work - and I'm no copyright expert! - is an
additional provision to the existing frameworks that allows for some kind
of fair use of orphan works, after a diligent search and in a limited way,
but is *revocable if the rights holder comes forward* within a period of,
say, two years. After this two year period the orphan works would revert to
the public domain. This may allow for limited use initially under an ND-NC
licence which becomes much more open after that set period of time elapses.

Is that practical? I have no idea, but I am sure some folks on this list
can tell me!

Stevie

On 7 November 2014 07:08, Dimitar Parvanov Dimitrov <
dimitar.parvanov.dimitrov at gmail.com> wrote:

> I'll admit, that's a fair point :)
>
> I do think overhauling the current Directive would make our lives easier.
> Removing the non-commercial clause and limiting the financial risk (if the
> author turns up, a "fair compensation" is foreseen) are the two most
> obvious examples. The first can be done only be re-opening the Directive
> and the latter could also be done during the implementation by the Member
> States.
>
> However, the first Directive in the pipeline is on copyright. They want to
> reform is as a priority, while orphan works is not even on the work plan
> for the next years. So it makes sense to keep up the pressure on copyright
> reform.
>
> D
>
>
>
>
>
>
> 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.*
>>>>>>>>>
>>>>>>>>>
>>>>>>>>> _______________________________________________
>>>>>>>>> Advocacy_Advisors mailing list
>>>>>>>>> Advocacy_Advisors at lists.wikimedia.org
>>>>>>>>> https://lists.wikimedia.org/mailman/listinfo/advocacy_advisors
>>>>>>>>>
>>>>>>>>>
>>>>>>>>>
>>>>>>
>>>>>> _______________________________________________
>>>>>> Advocacy_Advisors mailing list
>>>>>> Advocacy_Advisors at lists.wikimedia.org
>>>>>> https://lists.wikimedia.org/mailman/listinfo/advocacy_advisors
>>>>>>
>>>>>
>>>>>
>>>>>
>>>>> --
>>>>> 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>.*
>>>>>
>>>>> _______________________________________________
>>>>> Advocacy_Advisors mailing list
>>>>> Advocacy_Advisors at lists.wikimedia.org
>>>>> https://lists.wikimedia.org/mailman/listinfo/advocacy_advisors
>>>>>
>>>>>
>>>>
>>>> _______________________________________________
>>>> Advocacy_Advisors mailing list
>>>> Advocacy_Advisors at lists.wikimedia.org
>>>> https://lists.wikimedia.org/mailman/listinfo/advocacy_advisors
>>>>
>>>>
>>>
>>
>
> _______________________________________________
> Advocacy_Advisors mailing list
> Advocacy_Advisors at lists.wikimedia.org
> https://lists.wikimedia.org/mailman/listinfo/advocacy_advisors
>
>

-- 

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.*
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <https://lists.wikimedia.org/pipermail/advocacy_advisors/attachments/20141107/233867dc/attachment-0001.html>