Favale, Homberg, Kretschmer, Mendis and Secchi (2013)

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1. Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare 2. Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)? 3. Harmony of interest assumption between authors and publishers (creators and producers/investors) 4. Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption) 5. Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)

A. Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right) B. Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction) C. Mass digitisation/orphan works (non-use; extended collective licensing) D. Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability) E. Fair remuneration (levies; copyright contracts) F. Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Source Details

Favale, Homberg, Kretschmer, Mendis and Secchi (2013)
Title: Copyright and the regulation of orphan works. A comparative review of seven jurisdictions and a rights clearance simulation.
Author(s): Favale, M, Homberg, F, Kretschmer, M, Mendis, D, Secchi, D
Year: 2013
Citation: 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.
Link(s): Definitive , Open Access
Key Related Studies:
Discipline:
Linked by: European Commission (2011b)
About the Data
Data Description: Study I consists of a comparative international review of actual or proposed orphan works legislation. Study II simulated a rights clearance exercise for six scenarios.
Data Type: Primary and Secondary data
Secondary Data Sources:
Data Collection Methods:
Data Analysis Methods:
Industry(ies):
Country(ies):
Cross Country Study?: Yes
Comparative Study?: Yes
Literature review?: No
Government or policy study?: Yes
Time Period(s) of Collection:
  • 2013
Funder(s):
  • Intellectual Property Office

Abstract

‘Orphan works’ are works in which copyright still subsists, but where the rightholder, whether it be the creator of the work or successor in title, cannot be located. This report was commissioned to assist the UK government in evaluating policy options in the implementation of the Hargreaves Review of Intellectual Property & Growth (2011) to enable and price the use of orphan works. The research proceeded in two stages. Study I undertook a comparative international review of actual or proposed orphan works legislation, and identified key characteristics of orphan works licensing schemes. Study II investigated the potential effects of such schemes by conducting a simulated rights clearance exercise for six scenarios (establishing licence terms and fees for specific commercial and non-commercial uses), and analysing the resulting dataset for effects of the characteristics identified in Study I.

Main Results of the Study

  • Two distinct approaches appear to be used for governing orphan works in the jurisdictions by collecting societies in Denmark. Interestingly, national central authorities have claimed that although no official negotiation process is provided by law, the price of licences is set on a case by case basis, after considering the individual circumstances of the applicant
  • In Canada, Japan, India, Denmark and France an upfront payment is normally required by the applicant in exchange for using orphan works. In Canada, payment is upfront in approximately two-thirds of cases, whilst it is contingent on the rightholder reappearing in the remaining third.
  • In the US, in Hungary, and France a voluntary public online register for suspected orphan works is established. The EU is establishing a register at the Office for Harmonization in the Internal Market (OHIM). In Japan, some institutions have their own register of orphan works. No register is envisaged in India, Canada or Denmark (prior to the Orphan Works Directive).
  • There does not appear to be a standard price for licensing orphan works.
  • There is no systematic recognition of what may constitute an appropriate duration for licences.
  • The report finds high tariffs that discourage mass digitisation projects.
  • The average level of fees imposed on a potential user of an orphan work is similar in collective and individual licensing regimes.
  • A limited liability system seems to have advantages for archives and other non-profit institutions exposed to orphan works, enabling those organisations to share their stock of orphaned artefacts with the public. In contrast, the up-front rights clearing seems to provide more appropriate incentives for commercial uses of orphaned artefacts, guaranteeing that a reappearing rightholder will be compensated for the exploitation of any work.
  • The incentive problem is not mere speculation but reflected in actual user behaviour and shows that in particular in the US a limited liability system seems to enhance the availability of orphan works.

Policy Implications as Stated By Author

  • The authors advocate the need for a more structured and consistent approach in governing orphan works that is reflected in the pricing and duration of licences, and in the costs of running any licensing system.
  • Licensing prices in extended collective licensing systems do not seem to be remarkably higher or lower than prices within other licensing systems. This implies that the associated cost with running collective and individual licensing systems may become an important criterion when implementing a new solution for the regulation of orphan works.
  • According to the authors, a legislator must make a decision on what is deemed to be the desired behaviour. Thus, it seems feasible to consider both the limited liability and the up-front rights clearing as viable options but for different purposes. The limited liability system seems to have advantages for archives and other non-profit institutions exposed to orphan works enabling those organisations to actually share their stock of orphaned artefacts with the public. In contrast, up-front rights clearing seems to provide more appropriate incentives for commercial uses of orphaned artefacts guaranteeing that a re-appearing rightholder will be compensated for the exploitation of their work.

Coverage of Study

Coverage of Fundamental Issues
Issue Included within Study
Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare
Green-tick.png
Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)?
Green-tick.png
Harmony of interest assumption between authors and publishers (creators and producers/investors)
Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption)
Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)
Green-tick.png
Coverage of Evidence Based Policies
Issue Included within Study
Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right)
Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction)
Green-tick.png
Mass digitisation/orphan works (non-use; extended collective licensing)
Green-tick.png
Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability)
Green-tick.png
Fair remuneration (levies; copyright contracts)
Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Datasets

Sample size: 7
Level of aggregation: Country
Period of material under study: 2013


Sample size: 6
Level of aggregation: Scenario
Period of material under study: 2013