Introduction

The term ‘orphan work’ is one that has become so often used in recent times that it is often assumed that everyone knows to what it refers and all are applying the same definition. This might not be so. The Gowers Review of Intellectual Property Footnote ¹ deals with the major issues in Sections 4.91 to 4.101, and presents the simplest of definitions:

The Publishers AssociationFootnote ² expands this definition with another key point:

These simple definitions immediately present the academic with a range of problems with which they and/or their advisers must deal, whether it's in connection with copying material for use in teaching or quoting extensively as part of a research thesis or report.

There are three questions to be asked when any copying of a work is to take place:

1. 1. Is the work in or out of copyright? If it is still in copyright then

2. 2. Is the copying of the pertinent part of the work for the purpose intended permitted by the current legislation or

3. 3. Does the copier have the permission of the rights holder(s) to copy the required material either directly or through a licensing scheme?

Each of these questions in themselves hides a large number of subsidiary questions to be asked and so present a minefield to the academic teacher or researcher who wants to avoid the taint of infringement. It has to be admitted that many will take the risk and use material in their teaching or research without being entirely sure as to which side of the line it lies – a strategy to be discussed later.

Whilst determining whether or not a published textbook is or is not still in copyright can be problematic, many ‘orphan work’ problems are associated with the use of illustrations (usually photographs) and items that probably have never been published but might have been.

Here are two real-life examples involving items in Special Collections at the University of Birmingham. A member of the public is researching the early life of Neville Chamberlain with the intention of having her work published in a book. She has identified a photograph in our Chamberlain archive from the period in question. It appears to have been taken in a Birmingham photographer's studio, with the details on the reverse, and could be dated to the late 19th Century. Although the Chamberlain trustees are perfectly happy for the print to be copied for the book, there is a question as to whether or not any copyright still subsists in the item and (if so) who would be the rights holder?

In a similar vein, another researcher is compiling a collection of letters sent by a prolific authoress, again of the late 19th Century, which he will be making available on a website. He has identified one in an archive that we hold at Birmingham and asks if he can have our permission to transcribe and publish it. If it has never been published before, then it may well fall into the category of items remaining in copyright until 31 December 2039. Even if that can be determined, getting permission to publish from the rights holder might be difficult, as the person who inherited the rights upon the author's death herself died in 1941 intestate and with no known heirs. In this instance the copyright might have become the property of the Crown.

Most queries from teaching staff relate to the use of photographs to improve the ‘look and feel’ of their modules mounted on our virtual learning environment (VLE) or the copying of multiple chapters from old textbooks. A typical question would be: “I want to put three chapters of a textbook on the VLE. It was first published in 1976 and it's been out of print for more than ten years, so I can simply go ahead and do that can't I?” No matter how clearly you explain the difference between ‘out of print’ and ‘out of copyright’, you are still going to be labelled obstructive by the tutor when answering that question in the negative.

So what steps does the copyright advisor take to assist the tutor or researcher? I try to answer the three questions above in turn, starting with the ‘simple’ question of trying to determine if the item is in or out of copyright. This starts with the identification if possible of an author and progresses through the date of creation, format and publication or otherwise. Whenever possible I try to examine the item in question, as even diligent researchers might have overlooked some clue as to the work's copyright provenance. The use of internet resources assists in determining if the author is deceased and, if so, the date of death, though as usual it is best to try to verify the details from a number of sources! Even if the signs are that copyright has expired, in the event of doubt it is better to start from the premise that it still exists.

For a clear exposition of the duration of copyright I would normally turn to the charts produced by Tim Padfield in Copyright for Archivists and Records Managers. The fourth edition of this workFootnote ³ has now been published and includes (according to the publishers) “a list of key points about copyright that frequently raise questions, such as the duration of copyright in works whose copyright is owned by companies and other bodies”, which is not uncommon when dealing with ‘orphans’.

Parallel to this, it is important to get a clear picture of the use that the tutor or researcher intends to make of the material. After all, for a published work still in copyright, the legislation permits the fair dealing use of insubstantial amounts of the work for the purpose of criticism or review, irrespective of whether or not the author or rights holder is known, provided proper attribution is given. However, this is merely a defence against the accusation of infringement, so some tutors or researchers are best advised to seek permission if possible rather than argue that their use of part of a photograph was insubstantial and came under the description of criticism (rather than ‘mere’ illustration).

Many HE and FE institutions will have blanket licences that will enable copyright material to be duplicated and distributed in one form or another for the purpose of supporting teaching. These will remove some, but not all, of the problems involved, especially when the specific terms and conditions of the licence are examined. This still leaves a substantial number of instances when seeking the permission of the rights owner(s) for copying is the best and safest route to take, but not necessarily the easiest.

For unknown or sometimes pseudonymous authors, the publisher (if known!) will be the first to contact, though mergers and acquisitions in the industry do not help. A source such as Firms out of Business Footnote ⁴ run jointly by the Harry Ransom Center at the University of Texas at Austin and University of Reading Library is a good starting point in that case. Also from the same partnership comes the WATCH (Writers Artists and their Copyright Holders) search service.Footnote ⁵

In the Joint Guidelines on Copyright and Academic Research Footnote ⁶ published jointly by the British Academy and the Publishers Association (PA) in April 2008, the PA re-iterates its stance taken in its 2007 paper on Orphan WorksFootnote ²:

They add that reasonable inquiries would include: contacting publishers or successors; checking the provenance of unpublished works ascertained from current owners; advertising in appropriate journals; checks of reasonably accessible library catalogues and databases of rights owners. Section 8 of the Joint Guidelines gives a good summary and further information as to what might be expected of the prospective copier.

What constitutes a diligent search may well depend on the media involved, and will take knowledge, skill and experience far beyond that of the everyday tutor or researcher. A simple name search on Google may not yield too much information on the rights-holder for an orphan work!

At some point, the prospective user will have to make a judgement call on the risks involved with copying the work after reasonable efforts have been made to identify and trace the copyright owner and secure permission.Footnote ⁷ In such circumstances where the tutor or researcher wants to go ahead and copy or publish, I advise including or attaching the (honest) statement:

Whilst inferring that infringement has taken place but not admitting it, the author opens up the possibility of negotiating with the rights holder, which is what would have happened in the first place.

Although many would consider this an entirely sensible approach, it is little different in theory to the original proposals put forward by Google in their attempts to digitise the world's book resources – excepting that there was debate as to whether or not they would perform any ‘reasonable search’. Current proposals (and possible agreements) are based on the allocation of contingency funds to recompense authors retrospectively if they can show that their rights have been infringed.

However, some sectors object to this approach on principle as was demonstrated in the debates about the inclusion of the original Clause 43 of the Digital Economy Bill which was dropped prior to enactment. Those representing photographers argued that the proposed legislation presented a significant threat to their ownership rights, whilst others argued that it would strengthen them. For this argument see the articles by Sarah SaundersFootnote ⁸ and Simon Juden,Footnote ⁹ and the letters to The Times of 3 February 2010Footnote ¹⁰ and 8 February 2010.Footnote ¹¹

So what hope is there for the tutor and the researcher? The Gowers Review recommended three things: a change to the legislation, clear guidance on what constitutes a ‘reasonable search’ and the establishment of a voluntary register of copyright. At the time of the review (2006) Gowers stated that a change in the legislation would have to start with an amendment to the EC Directive 2001/29/EC to formalise the status of orphan works such that UK legislation could be amended (Recommendation 13). It had been hoped that the Digital Economy Act could produce the same result but, as mentioned above, the relevant clause never made it to the end. Nevertheless, lobbying continues and the matter is still being debated.

Gowers' Recommendation 14a states: “The Patent Office should issue clear guidance on the parameters of a ‘reasonable search’ for orphan works, in consultation with rights holders, collecting societies, rights owners and archives, when an orphan works exception comes into being.”

Although the exception has not come into being, there is still a very strong argument for such guidelines being issued.

The second half of this is Recommendation 14b: “The Patent Office should establish a voluntary register of copyright, either on its own or through partnerships with database holders, by 2008.

Again, no progress has been made on this in the UK. However, there are two other initiatives which hold promise: the proposed Book Rights Registry in the USA, where publishers must claim their titles (and unclaimed titles are by default considered orphan), and the ‘Accessible Registries of Rights Information and Orphan Works Project’, known as ARROW, which is being promoted in Europe. It is funded by the European Commission to enable the development of Europeana, a search platform to a collection of European Digital Libraries.

ARROW is not intended to replace the ‘diligent search’, but will be a valuable part of it. Although not exhaustive or complete, rights information does exist but is held in a wide range of sources by publishers, authors, agents, organisations such as the CLA, bibliographic services and libraries. In many cases this information already exists in database form. The aim of the ARROW project is to link together as many of these as possible.Footnote ¹² The Publishers Licensing Society (through its member organisations) is actively encouraging participation in the project and from October 2010 will be asking publishers to provide it with data relating to all titles for which they hold the rights, including in print, out of print and e-books.Footnote ¹³

The publishers obviously have a vested interest in collating this data and making it available, but nevertheless, if successful, it will be a great step forward in reducing the effort needed to identify rights holders when collections are being digitised and academics need permission to copy from orphan works.