Korn (2009)

From Copyright EVIDENCE

Advertising Architectural Publishing of books, periodicals and other publishing Programming and broadcasting Computer programming Computer consultancy Creative, arts and entertainment Cultural education

Film and motion pictures Sound recording and music publishing Photographic activities PR and communication Software publishing (including video games) Specialised design Television programmes Translation and interpretation

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

Korn (2009)
Title: In from the Cold: An assessment of the scope of ‘Orphan Works’ and its impact on the delivery of services to the public
Author(s): Korn N.
Year: 2009
Citation: 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).
Link(s): Definitive , Open Access
Key Related Studies:
Discipline:
Linked by:
About the Data
Data Description: The study uses evidence gathered by two organisations: the Collections Trust and the Strategic Content Alliance. The ‘In from the Cold’ project is the first research of its kind surveying the extent of Orphan Works across the UK’s public sector, drawing on international responses as well as qualitative data from over 80 UK-based public sector bodies. Data was gathered from the responses of 503 individuals to an online survey, and the responses in interviews with 81 individuals. All of the respondents were individuals from or connected to organisations that potentially held Orphan Works in their collections.
Data Type: Primary data
Secondary Data Sources:
Data Collection Methods:
Data Analysis Methods:
Industry(ies):
Country(ies):
Cross Country Study?: No
Comparative Study?: No
Literature review?: No
Government or policy study?: Yes
Time Period(s) of Collection:
  • 2008 to 2009
Funder(s):
  • JISC

Abstract

Organisations across the UK’s public sector are responsible for the management of and provision of access to a huge range of content in many formats. These are likely to range from works with high commercial value, such as fine art and commercial films with attributable artists and/or rights holders and collecting societies, to works of low commercial value but high academic, cultural and historic worth, such as documentary photographs, letters and sound recordings, where a recognised rights holder is unlikely.

Main Results of the Study

1)The average proportion of Orphan Works in collections across the UK’s public sector was measured at 5% to 10%, whilst in certain sectors (archives) this proportion was higher.

2)The mid-range estimates put the total number of Orphan Works, represented in our sample of 503 responses to the online survey, at a total of in excess of 13 million.

3)Individual estimates suggest that there are single organisations in the survey sample that hold in excess of 7.5 million Orphan Works. If we include even a few of these extreme examples in our calculations, it appears likely that this sample of 503 organisations could represent volumes of Orphan Works well in excess of 50 million.

4)Extrapolated across UK museums and galleries, the number of Orphan Works can conservatively be estimated at 25 million, although this figure is likely to be much higher.

5)The extent of Orphan Works across the public sector and their potential impact is huge. On average, 89% of participants’ service delivery is at least occasionally affected, whilst 26% noted that the issue of Orphan Works either frequently affects them or affects everything that they do.

6)The types of works likely to be Orphan Works are those with little commercial value, but high academic and cultural significance and where rights holders, if traced, would usually be happy for their works to be reproduced. User generated content, works by amateur or local artists and works by artists using aliases were also mentioned as at risk of being Orphan Works.

7)A number of factors were identified as leading to Orphan Works, including: −− Insufficient information identifying the copyright owner −− The owner of the copyright could not be located −− The copyright holder has died and there is no further information about ownership of the rights

8)Overall, the most common method for managing Orphan Works is the adoption of a risk managed approach (average of 60%), whilst 4% of respondents gave ‘other reasons’. Differences in how organisations might handle Orphan Works occur between sectors.

9)Organisations spent on average less than half of one day tracing rights for each Orphan Work. Therefore it would take in the region of 6 million days effort to trace the rights holders for the 13 million works represented in our on-line survey. In certain high profile projects, some organisations had spent large resources of time on chasing rights holders. However time and additional resources are also being used to educate the public and students and train (and remind) colleagues about the specifications of working with Orphan Works.

10)At least 35% of organisations across all sectors, regardless of the size of their collections, do not have any specific resources in place to help deal with Orphan Works. It should be noted that responses from non-UK based respondents broadly corroborated the findings across sectoral divides, apart from how organisations handle Orphan Works, which varied between the UK and the international responses.

Policy Implications as Stated By Author

The scale and impact of Orphan Works across the public sector confirms that the presence of Orphan Works is in essence locking up culture and other public sector content and preventing organisations from serving the public interest. Works of little and/or variable commercial value but high academic and cultural significance are languishing unused. Access to an immense amount of this material, essential for education and scholarship, is consequently badly constrained, whilst scarce public sector resources are being used up on complex and unreliable ‘due diligence’ compliance. Without any kind of UK or European Union-wide legal certainty, there will remain a major risk for all users of Orphan Works. The quantity of Orphan Works and their impact is only accelerating as content is being created and digitised without adherence to any single internationally recognised standard for capturing provenance information. The data and anecdotal feedback suggests that many public sector organisations are themselves unsure as to the extent of the problem, and that staff awareness and understanding are often limited.

There are also suggestions that often works are selected for digitisation based on the fact that they do not pose any copyright issues, thus creating a black hole of 20th century content. These issues stress the need for an informed and skilled public sector to deal with all the issues associated with copyright-related materials, the necessity for access to resources to deal with Orphan Works, and an informed and proportionate understanding of the nature of the risks associated with the use of these works.

It is crucial that policy makers recognise the problems that public sector bodies face in managing and providing public access online to a vast range of works in copyright (including Orphan Works), and create a suite of appropriate legislatively based solutions. Whether the answer is a UK or an international one, involving a change in practice and interpretation and/or a change in legislation, this is clearly a matter of urgency. Without these legal safeguards, the contribution of public sector content to a global digital landscape will continue to be severely curtailed and the levels of public resources to manage copyright will be unacceptable.

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)?
Harmony of interest assumption between authors and publishers (creators and producers/investors)
Green-tick.png
Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption)
Green-tick.png
Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)
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: 503
Level of aggregation: Individuals
Period of material under study: 2008 to 2009


Sample size: 86
Level of aggregation: Individuals
Period of material under study: 2008 to 2009