Dr. Eleonora Rosati, came to Cambridge Darkroom and talked through the Orphan Works Directive as the recent Enterprise and Regulatory Reform Act will allow anyone to exploit your photograph without your knowledge, permission and payment to you. This is a must watch if you blog or put content online!

1. The Orphan Works Directive
and the Enterprise & Regulatory Reform Act:
What do they mean to photographers?
Dr Eleonora Rosati
University of Cambridge
Cambridge Darkroom – Photography Social
30 May 2013

2. Summary
• The Orphan Works (OW) Directive
– Background to the Directive
– Scope
– Permitted uses
• Enterprise and Regulatory Reform (ERR) Act
– Orphan works
– Extended collective licensing (ECL)
– Stop43’s arguments and IPO’s response
• What is there in the UK agenda?
– New exceptions and limitations (news reporting)
– Implementation of the OW Directive

3. The OW Directive (Directive 2012/28/EU)

4. The OW Directive
2005 i2010 pan-European digital libraries initiative (Europeana)
2006 MSs to adopt mechanisms to facilitate use of OWs
2008 Potential cross-border nature of OW issues
2009 • EU intervention needed: digitisation and development of
attractive content offers, eg Google Books (Reding)
• Need to replicate terms of the 2008 Google Books
Settlement (Reding and McCreedy) (then rejected in 2011)
2011 • IP Blueprint: facilitate licensing (Monti Report, digital single
market)
• Proposal for a directive (Denmark, Finland, Hungary,
Sweden, France, UK)
2012 OW Directive

5. The text of the Directive (I)
• Beneficiaries: cultural institutions to achieve aims related to
public-interest missions
• Without prejudice to public/private partnership agreements
• Subject-matter:
– Literary, cinematographic, audiovisual works
– Phonograms
– BUT NO stand-alone photographs!
• Notion of ‘diligent search’ (to be left to MSs) and mutual
recognition

6. The text of the Directive (II)
• Permitted uses: reproduction and making available to the public
• Revenues for the exclusive purpose of covering digitisation costs
of works and make them available to the public
• Fair compensation mechanisms
• Directive is without prejudice to national solutions to address
larger mass digitisation issues (eg ‘out-of-commerce' works)

7. The ERR Act

8. Copyright provisions
• Designs derived from artistic copyright
• The Secretary of State might issue regulations to:
– Standardise the term of protection for unpublished works
– License orphan works
– Grant copyright licences in respect of works in which copyright
is not owned by the body or a person on whose behalf the
body acts (ECL)

9. Orphan works in the ERR Act (I)
• Attempted OW legislation in the Digital Economy Act
• Secondary legislation will clarify:
– Subjects authorised to grant licences
– Notion of ‘diligent search’
– Possibility that authorisation covers any acts restricted by copyright
• The regulations may apply to a work although it is not
known whether copyright subsists in it

10. Orphan works in the ERR Act (II)
• Beneficiaries: broader than Directive
• Permitted uses: any act restricted by copyright
• Scope: broader than OW Directive
• Any solution limited to UK

11. ECL
• Licensing body might grant copyright licences in respect
of works in which copyright is not owned by the body or
a person on whose behalf the body acts
• Not a mass-digitisation gateway
“An authorisation must specify (a) the types of work to which it applies, and (b)
the acts restricted by copyright that the licensing body is authorised to license.”
• An opting-out mechanism
“The regulations must provide for the copyright owner to have a right to limit or
exclude the grant of licences by virtue of the regulations.”
• A national copyright hub (cf EU databases within OW Directive)
• High volume/low value transactions
• £150,000 Government funding but to be industry-led
• A model for EU-wide solutions?

13. Stop43’s arguments
• Will permit widespread commercial exploitation of
unidentified works
• A user of a work can act as if they are the owner of the work
• Monitoring costs transferred on photographers
• Fails to prohibit sub-licensing, meaning that once somebody
has your work, they can wholesale it
• You'll have two stark choices to prevent being ripped off
• Remove your work from the internet entirely, or
• Opt-out by registering it. And registration will be on a work-by-
work basis

14. IPO’s response: Myth vs Fact
• Given the steps that must be taken before an orphan work
can be copied (diligent search, verification of the search
and payment of a going rate fee) unlikely that the scheme
will be attractive where a substitute photograph is
available
• Licences to use an orphan work will not allow sub-licensing
• Absence or removal of metadata does not in itself make a
work orphan or allow its use under the OW scheme
• Copyright will continue to be automatic
• UK powers are largely based on what happens in Canada –
which has been licensing orphan works since 1990

15. What does the future hold?

16. Should photographers be worried?
• Much will depend on secondary legislation
– ERR Act much broader than OW Directive
– Stand-alone photographs
– Permitted uses
• Discussion on copyright exceptions
– Quotation and news reporting (photographs)
– Format shifting (from analogue to digital to limit OW issues)
• UK will have to implement OW Directive
– Canada is not an EU Member State
– Possible overlaps: diligent search, public/private partnerships

17. Email : er333@cam.ac.uk
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