C. Mass digitisation/orphan works (non-use; extended collective licensing)

From Copyright EVIDENCE
Revision as of 20:03, 13 May 2016 by Theodore (talk | contribs)

The issue

The declining cost of digital technology has made it possible to reproduce, manipulate and catalogue large quantities of data. This makes it feasible for cultural heritage institutions (CHIs) to digitise their physical collections (Borghi & Karapapa, 2013; Nelson & Irwin, 2014). For example, the Bibliothèque nationale de France has announced plans to digitise 500,000 works contained in its collection with national government support (Delorme, 2011). In partnership with a number of national libraries, search engine company Google initiated a project in 2004 to digitise some 20 million books at an estimated cost of $30 USD per book (Samuelson, 2009). Supporters of mass digitisation have advanced a number of justifications for these efforts, including the need to promote competitiveness in the digital economy (Hargreaves, 2012), to fulfil the mandate of cultural institutions to curate and preserve the national cultural memory (Covey, 2005), and to promote cross-cultural exchange and mutual understanding through access to information (Borghi & Karapapa, 2013). The economic and cultural justifications for digitisation often overlap, for example in the European Commission’s stated aim to pursue a cross-territory universal digital library while at the same time closing a perceived ‘knowledge gap’ with the USA (European Commission, 2011).

A major impediment to mass digitisation of cultural works has been copyright law. While the technical costs of digitisation have decreased, the cost imposed on CHIs by the need to locate and ask permission of rightsholders have risen as a proportion of the cost of digitisation (Covey, 2005). This is particularly the case when CHIs seek to digitise entire collections of works, because there is often a significant number of items with rightsholders who cannot be identified or located, even after a diligent search. These materials have been referred to as ‘orphan works’ owing to their status as likely being inside of copyright protection but without known rights owners from whom to ask permission for use (Borghi & Karapapa, 2013). Investment in mass digitisation could be hindered by the high transaction costs of searching for and locating rightsholders, and by the inability to locate some rightsholders which may prevent digitisation entirely of some portion of a collection.


Policy interventions

The European Commission’s Impact Assessment on the Cross-Border Online Access to Orphan Works (2011) identified 6 potential policy interventions, several of which were based on existing legal approaches undertaken in certain national jurisdictions. These were:

1) Do nothing: without a legislative solution to the problem of orphan works, CHIs and other users in Europe would proceed under the existing copyright framework in their national jurisdictions. Digitisation of works in the public domain, or works in copyright where permission was obtained, could proceed. CHIs could independently adopt a ‘risk-based’ approach to digitisation of orphan works (See Stobo et al, 2013). The Commission’s Impact Assessment predicted that innovative ground would be lost to other territories, in particular the USA, where the fair use ruling in the Google Books court case permitted the search engine operator to proceed with digitisation under an ‘opt-out’ arrangement.

2) Statutory exception for libraries: this proposal would create an exception to copyright for libraries to provide online access to works determined to be orphans following a diligent search. Legal guidelines would define the requirements for an adequately ‘diligent’ search, however no central authority would monitor the diligence of searches. In the case of re-emergence of a rightsholder, libraries could still be liable for copyright infringement if the search was found not found to be adequately diligent in order to benefit from the exception.

3) Extended collective licensing: by granting collecting societies the ability to issue licenses for works not held in their repertoires, European Union Member States could make it possible for CHIs to obtain licensed use of orphan works in mediums where there is a relevant collecting society. This model is already used by libraries in Norway, where a fixed fee per digitised page is paid annually to an author’s collecting society. The authors of the Impact Assessment expressed concern that license fees could be high or equivalent to licenses for commercial works, leading to a failure to solve the ‘orphan works paradox’. This paradox arises from the lack of interest in licensing orphans due to their low commercial appeal. Also, without a diligent search requirement, CHIs in other jurisdictions would not be able to benefit from recognition of the legal status of the work, and would be required to negotiate separately with collecting societies, increasing transaction costs.

4) Orphan works-specific license for libraries: in this option, the orphaned status of a work would be established via diligent search in the country of first publication and then a license would be obtained from a collecting society with authority in the relevant medium. Legal certainty would thus be achieved whilst eliminating the need for duplicated searches by CHIs in other national jurisdictions. This would permit the establishment of cross-territory digital libraries, but would introduce two sources of costs for libraries: the diligent search cost which would be required to establish legal status, in addition to any fees paid to the licensing society.

5) Centrally granted national license for orphan works: in this model, which is currently used in Canada and the UK, a central national authority grants licenses to users of orphan works. Under the UK Orphan Works Licensing Scheme (OWLS) the Intellectual Property Office administers licensing of works determined to be orphan through an application procedure, for both commercial and non-commercial use, with licenses lasting for 7 years, and the management of fees paid by commercial users to compensate rightsholders in the event of re-emergence. The European Commission Impact Assessment expressed concern that such national licensing schemes hinder cross-territory digital libraries by fragmenting the legal definition of orphan status and diligent search requirement among national jurisdictions.

6) Mutual recognition of orphan works made available by libraries: this policy option would create a legal framework on the definition of orphan works recognised across European Member States. After meeting the requirement of a diligent search in the country of first publication (with diligent search guidelines mandated at the European level and harmonised in national jurisdictions), institutions could digitally make available orphan works held in their collections. Mutual recognition of orphan status between territories would reduce duplication or search and expand collaboration. This option offers less legal certainty than a license; in the case of emergence of a rightsholder a user could still be liable for copyright infringement if the search was found to lack sufficient diligence to benefit from the exception.

The EU Directive on Orphan Works (2012/28/EU) was introduced on 29th October 2014. It closely follows the mutual recognition of orphan works option (6) outlined in the Impact Assessment, with a central repository for diligent search records established at the Office for the Harmonisation of the Internal Market (OHIM), now the European Intellectual Property Office (EUIPO). The UK adopted its own orphan works licensing scheme in October 2014, which exists in addition to the non-commercial exception created by Directive 2012/28/EU.


Existing evidence

A significant number of empirical studies have assessed the costs of rights clearance for CHIs and estimated the proportion of orphan works contained in collections. For example, a study by Covey (2005) conducted at Carnegie Mellon university examined 277 randomly selected book titles held in the university library and recorded the costs of rights clearance. For 19% of the books in the sample, a rightsholder could not be located. Of the 81% of titles where a rightsholder was located, 34% did not respond to the requests for permission. A further 37% of rightsholders denied permission to digitize the work, while 30% of those contacted agreed to digitisation. Calculating transaction costs (labour and material costs of searching for rightsholders not including agreed fees) the researchers estimated $200 USD per cleared work.

A similar study by Stratton (2011) recorded information on the cost of locating rightsholders in a sample of 140 books published between 1870 and 2010 and held by the British Library. The study sought to identify the resource costs required to ascertain the copyright status of the material as well as the proportion of orphan works in the sample. Of the total sample, 29% of titles were found to be in the public domain due to expiration of copyright term while 71% of works were judged to be in-copyright. Of those in copyright, 43% were determined to be orphan works after a diligent search, corresponding to 31% of the total sample of 140 works. The results are in line with findings from a number other studies of library collections of 19th and 20th Century printed material (Covey, 2005; Dickson, 2010). Studies on other types of material have confirmed the presence of orphan works, but in different proportions depending on the nature of the collection and the medium under study. An internal study performed by the BBC and cited by both Ian Hargreaves (2011) and the UK IPO (2013) in support of a legislative solution to orphan works examined 1000 hours of factual TV programming contained in the BBC archives. The broadcaster reportedly spent 6.5 hours and £91 searching for and clearing the rights in each hour of archival programming. No indication was provided on the proportion of rightsholders that could not be located. Reporting on rights clearance costs in sound recordings, The British Library (2011) described an effort to digitise 220 analogue recordings of oral histories with jazz musicians. The recordings were originally made in the 1980s. A search for 200 rightsholders between 2005-2007 was able to successfully clear copyright permissions in 53.5% of cases. A remaining 26.5% of the collection remained orphaned, even after extensive search. A study by Stobo et al (2016, forthcoming) on mixed collection of scrapbook materials found a high proportion (80%) of orphan works due to the partial nature of items in the collection.


Evidence needed

Owing to the relatively recent implementation of orphan works legislation in a number of jurisdictions, there is limited empirical evidence on the costs and benefits of policy approaches, with the exception of a small number of recently published studies. A comparative study by Favale et al (2013) evaluated the commercial and non-commercial use of orphan works in seven jurisdictions with operational orphan works regulations. The study used a rights clearance simulation methodology to ascertain and compare the license fees for a set number of uses of orphan works, finding wide divergence in costs from one jurisdiction to another. A similar study by Stobo et al. (2016, forthcoming) carried out a rights clearance simulation exercise on a sample of mixed-media works contained in the Edwin Morgan scrapbooks at the University of Glasgow Library. The study recorded costs of complying with both the national UK IPO licensing scheme as well as the diligent search requirements of EU Directive 2012/28/EU. The study found that high licensing fees and transaction costs introduced by the diligent search requirements in these schemes limited the effectiveness of the policies for promoting mass digitisation.

Due to its focus on tabulating the costs of rights clearance and the size of the orphan works problem, much existing empirical work remains descriptive. Some of this work has begun to explore causal effects, showing potential for more sophisticated statistical research to draw inferences from new or existing datasets on orphan works. For example, Covey (2005) has suggested exploring the relationship between publication date, costs of identifying rightsholder and likelihood of a fee payment request. Akmon (2010) found a statistically significant relationship between type of rightsholder (commercial, individual, government, educational) and likelihood of a positive response once located, with commercial rightsholders more likely than others to refuse permission. In a study with the Wellcome Trust, Stobo et al (2013) approached the question of likelihood of rightsholder re-emergence, to evaluate effectiveness of risk-based strategies. In order to better assess national policy approaches to orphan works, it would be helpful to generate understanding about the welfare effects of these policies, considering transaction costs introduced by diligent search requirements and other formal procedures, costs to rightsholders and their ability to seek redress, and economic and social benefits of creation of digital collections. More optimal license fee structures and diligent search requirements are likely possible (for example in order to encourage mass digitisation) even within existing orphan works regulations.


References

Akmon, D. (2010). Only with your permission: how rights holders respond (or don’t respond) to requests to display archival materials online. Archival Science, 10(1), 45-64.

Borghi, M., & Karapapa, S. (2013). Copyright and mass digitization. Oxford University Press.

British Library (2011). Response from the British Library to the Independent Review of Intellectual Property and Growth. March 2011. Accessed online: http://infojustice.org/download/gcongress/limitationsandexceptionsforculturalinstitutions/British%20library.pdf

Covey, D.T., (2005). Acquiring copyright permission to digitise and provide open access to books, DLF, Council on Library and Information Resources, Washington DC. Available at http://www.clir.org/pubs/reports/pub134/reports/pub134/pub134col.pdf

Delorme, B., (2011). Digitization at the Bibliothèque nationale de France, including an interview with Bruno Delorme. Serials. 24(3), pp.261–265. DOI: http://doi.org/10.1629/24261

Dickson, M. (2010). Due diligence, futile effort: Copyright and the digitization of the Thomas E. Watson papers. The American Archivist, 73(2), 626-636. European Commission (2011). Commission Impact Assessment on the Cross-Border Online Access to Orphan Works. Commission Working Paper

Favale, M., Homberg, F., Kretschmer, M., Mendis, D., & Secchi, D. (2015). Copyright, and the Regulation of Orphan Works: A Comparative Review of Seven Jurisdictions and a Rights Clearance Simulation. London: UK Intellectual Property Office. Available at SSRN 2613498.

Hargreaves, I. (2011). Digital Opportunity: A Review of Intellectual Property and Growth: An Independent Report. London, UK, Intellectual Property Office. Intellectual Property Office (2014). Copyright works: seeking the lost. Consultation on implementing a domestic orphan works licensing scheme and the EU Directive on certain permitted uses of orphan works. Newport: Intellectual Property Office UK.

Nelson, A. J., & Irwin, J. (2014). “Defining What We Do—All Over Again”: Occupational Identity, Technological Change, and the Librarian/Internet-Search Relationship. Academy of Management Journal, 57(3), 892-928.

Samuelson, P. (2009). Google Book Search and the future of Books in Cyberspace. Minn. L. Rev., 94, 1308.

Stobo, V., Deazley, R., & Anderson, I. (2013). Copyright and Risk: Scoping the Wellcome Digital Library Project (No. 10). CREATe Working Paper.

Stobo, V., Patterson, K. & Erickson, K. (2016). ‘I should like you to see them some time’: an empirical study of the costs of rights clearance in the digitisation of Edwin Morgan’s scrapbooks. Working Paper.

Stratton, B. (2011). Seeking New Landscapes: A rights clearance study in the context of mass digitisation of 140 books published between 1870 and 2010 (London: British Library/ARROW. Available at http://www.arrow-net.eu/sites/default/files/Seeking%20New%20Landscapes.pdf

Vuopala, A. (2010). Assessment of the Orphan works issue and Costs for Rights Clearance. European Commission Report (May 2010). Available at: http://ec.europa.eu/information_society/activities/digital_libraries/doc/reports_orphan/anna_report.pdf


Evidence Based Policy Areas

C. Mass digitisation/orphan works (non-use; extended collective licensing) is an evidence based policy area defined within the Copyright Evidence wiki.

The following studies are related to this issue (78):

 Citation
Akmon (2010)Akmon, D. (2010). Only with your permission: how rights holders respond (or don’t respond) to requests to display archival materials online. Archival Science, 10(1), 45-64.
Allen (2012)Allen, N. (2012) Art Museum Images in Scholarly Publishing. Texas: Connexions.
Angelopoulos (2012)Angelopoulos, C. (2012). The myth of European term harmonisation: 27 public domains for the 27 member states. International Review of Intellectual Property and Competition Law (2012) Vol, 43, 567-594.
Astle and Muir (2002)Astle, P.J. and Muir, A., 2002. Digitization and preservation in public libraries and archives. Journal of Librarianship and Information Science, 34(2), pp.67-79.
Athey, Mobius and Pal (2017)Athey, S., Mobius, M. M., & Pál, J. (2017). The Impact of Aggregators on Internet News Consumption.
Ballon and Westermann (2006)Ballon, H. and Westermann, M. (2006) Art History and Its Publications in the Electronic Age. Texas: Connexions.
Bechtold (2013)Bechtold, S., 2013. The fashion of TV show formats.
Benson and Stitzlein (2019)Benson, S.R. and Stitzlein, H. (2019) Copyright and Digital Collections: A Data Driven Roadmap for Rights Statement Success. ACRL 2019 Proceedings.
Bmrb Social Research (2009)BMRB Social Research. (2009). Future copyright development. Intellectual Property Office, UK.
Bockstedt, Kauffman and Riggins (2004)Bockstedt, J., Kauffman, R. J., & Riggins, F. J. (2004). The move to artist-led online music distribution: Explaining structural changes in the digital music market. Paper accepted at the 38th Annual Hawaii International Conference on System Sciences.
Bodo (2015)
Brooks (2005)Brooks, T. (2005). Survey of reissues of US recordings. Council on Library and Information Resources.
Calzada and Gil (2016)Calzada, J., & Gil, R. (2016). What Do News Aggregators Do? Evidence from Google News in Spain and Germany.
Cameron and Bazelon (2013)Cameron, L., & Bazelon, C. (2013). The impact of digitization on business models in copyright driven industries: a review of economic issues. Brattle Groupe paper prepared for the US National Research Council, available at: http://sites.nationalacademies.org/cs/groups/pgasite/documents/webpage/pga_063398.pdf.
Canat, Guibault and Logeais (2015)Canat, J., Guibault, L. and Logeais, E., Study on Copyright Limitations and Exceptions for Museums, World Intellectual Property Organization (2015) SCCR/30/2.
Cave, Deegan and Heinink (2000)Cave, M., Deegan, M. and Heinink, L., 2000. Copyright clearance in the refugee studies centre digital library project. RLG DigiNews, 4(5).
Chiou and Tucker (2011)Chiou, Lesley and Tucker, Catherine, Copyright, Digitization, and Aggregation (December 13, 2011). NET Institute Working Paper No. 11-18.
Collections Trust (2015)Collections Trust (2015) Striking the Balance: How NMDC members are balancing public access and commercial reuse of digital content. A report by the Collections Trust commissioned by the NMDC <https://www.nationalmuseums.org.uk/media/documents/publications/striking_the_balance.pdf> (accessed 6 January 2022)
Corbett (2011)Corbett, S., 2011. Archiving Our Culture in a Digital Environment: Copyright Law and Digitisation Practices in Cultural Heritage Institutions. New Zealand Law Foundation Report.
Crews (2015)Crews, K., Study on Copyright Limitations and Related Rights, Standing Committee on Copyright and Related Rights, Thirtieth Session, SCCR/30/3 (2015).
De Wolf and Partners (2013)Triaille, J.P., Dusollier, S., Depreeuw, S., Hubin, J.B. and De Francquen, A., 2013. Study on the application of Directive 2001/29/EC on copyright and related rights in the information society. InfoSoc Directive.
Denoyelle et al (2018)Denoyelle, M., Durand, K., Daniel, J. and Doulkaridou-Ramantani, E. (2018) Image rights, art history and society. Report presented to the Foundation de France <https://www.inha.fr/fr/recherche/le-departement-des-etudes-et-de-la-recherche/domaines-de-recherche/programmes-en-cours/images-usages.html> (accessed 7 January 2022)
Dickson (2010)Dickson, M., 2010. Due diligence, futile effort: Copyright and the digitization of the Thomas E. Watson papers. The American Archivist, 73(2), pp.626-636.
Djekic and Loebbecke (2005)DJEKIC, P. and LOEBBECKE, C. 2005. Software piracy prevention through digital rights management systems. In: MULLER, G. and LIN, K. J. (eds.) CEC 2005: Seventh IEEE International Conference on E-Commerce Technology, Proceedings. Munich, Germany.
Dryden (2008)Dryden, J.E., 2008. Copyright in the real world: Making archival material available on the Internet (Doctoral dissertation, University of Toronto).
EIFL (2013)Electronic Information For Libraries - The European Orphan Works Directive An EIFL Guide (2013)
European Commission (2011b)European Commission Impact assessment on the cross-border online access to orphan works (Commission Staff Working Paper SEC (2011) 615 (final)
Favale, Homberg, Kretschmer, Mendis and Secchi (2013)Favale, M., Homberg, F., Kretschmer, M., Mendis, D., & Secchi, D. (2015). Copyright, and the Regulation of Orphan Works: A Comparative Review of Seven Jurisdictions and a Rights Clearance Simulation. Available at SSRN 2613498.
George (2005)George, C. A. (2005). Testing the barriers to digital libraries: A study seeking copyright permission to digitize published works. New Library World, 106(7/8), 332-342.
Gowers (2006)Gowers, A. (2006). Gowers Review of Intellectual Property. The Stationery Office.
Green (2021)Green, D. (2021). Learning to Let Go: Ownership, Rights, Fees, and Permissions of Readers’ Photographs. Anglia, 139(1), 59-70.
Handke (2012a)Handke, C. (2012). A Taxonomy of Empirical Research on Copyright-How Do We Inform Policy?. Review of Economic Research on Copyright Issues, 9(1), pp.47-92.
Hansen, Hashimoto, Hinze, Samuelson and Urban (2013)Hansen, D. R., Hashimoto, K., Hinze, G., Samuelson, P., & Urban, J. M. (2013). Solving the orphan works problem for the united states. Columbia Journal of Law & the Arts, 37(1).
Hansen, Hinze, and Urban (2013)Hansen, D. R., Hinze, G., & Urban, J. M. (2013). Orphan Works and the Search for Rightsholders: Who Participates in a'Diligent Search'under Present and Proposed Regimes?. Berkeley Digital Library Copyright Project, White Paper, (4)
Hargreaves (2011)Hargreaves, I. (2011). Digital Opportunity. A Review of Intellectual Property and Growth,
Heald (2007)Heald, P. J. (2007). Property rights and the efficient exploitation of copyrighted works: an empirical analysis of public domain and copyrighted fiction best sellers. UGA Legal Studies Research Paper, (07-003).
Heald (2008)Heald, P. J. (2008). Testing the Over- and Under-Exploitation Hypotheses: Bestselling Musical Compositions (1913-32) and Their Use in Cinema (1968-2007). U of Chicago, Public Law Working Paper, (234).
Heald (2017a)Heald, Paul J., Copyright Reversion to Authors (and the Rosetta Effect): An Empirical Study of Reappearing Books (December 8, 2017). Available at SSRN: https://ssrn.com/abstract=3084920 or http://dx.doi.org/10.2139/ssrn.3084920
Hudson (2020)Hudson, E. (2020) Drafting Copyright Exceptions: From the Law in Books to the Law in Action, Cambridge: Cambridge University Press
Hudson and Kenyon (2007)Hudson, E. and Kenyon, A.T., 2007. Digital Access: The Impact of Copyright on Digitisation Practices in Australian Museums, Galleries, Libraries, and Archives. UNSWLJ, 30, p.12.
Ilevbare (2008)ILEVBARE, F. M. 2008. Psychosocial factors influencing attitudes towards internet piracy among Nigerian university students. IFE Psychologia: An International Journal, 16, 120-129.
Intellectual Property Office (2015b)Intellectual Property Office (2015). Government response to the consultation on reducing the duration of copyright in certain unpublished works.
Kapsalis (2016)Kapsalis, E. (2016) The Impact of Open Access on Galleries, Libraries, Museums, & Archives. Smithsonian Institution Archives <http://siarchives.si.edu/sites/default/files/pdfs/2016_03_10_OpenCollections_Public.pdf> (accessed 6 January 2022)
Kelly (2013)Kelly, K. (2013) Images of Works of Art in Museum Collections: The Experience of Open Access. Mellon Foundation Study <https://www.clir.org/pubs/reports/pub157/> (accessed 6 January 2022)
Korn (2009)Korn, N., In from the Cold: An assessment of the scope of ‘Orphan Works’ and its impact on the delivery of services to the public (April 2009).
Liebowitz (2005)Liebowitz, S. J. (2005). Testing file-sharing's impact by examining record sales in cities. School of Management University of Texas Paper, September, 1-31.
Liu (2015)Liu, J. (2015). Copyright for Blockheads: An Empirical Study of Market Incentive and Intrinsic Motivation. Columbia Journal of Law & the Arts, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2633263
Masenya and Ngulube (2019)Masenya, T.M. and Ngulube, P. (2019) Digital preservation practices in academic libraries in South Africa in the wake of the digital revolution. South African Journal of Information Management, 21(1)
Monroy Rodríguez (2009)Monroy Rodríguez, J. C. Study on the limitations and exceptions to copyright and related rights for the purposes of educational and research activities in Latin America and the Caribbean (2009) WIPO, Geneva.
Morrison and Secker (2015)Morrison, C. and Secker, J., 2015. Copyright Literacy in the UK: a survey of librarians and other cultural heritage sector professionals. Library and Information Research, 39(121), pp.75-97.
... further results
Retrieved from "https://www.copyrightevidence.org/wiki/index.php?title=C._Mass_digitisation/orphan_works_(non-use;_extended_collective_licensing)&oldid=6902"