Article Story: ORPHAN WORKS AND CREATIVE COMMONS: COPYRIGHT UNDER THREAT?

Date: 10.05.2006

Picture Buyer's Fair, 10 May 2006

Introduction

We’ve got a vast array of interesting topics for you this morning. Bob Croxford, who runs a photo library so actually knows what he’s talking about, is going to cover some practical problems and pitfalls. I’m going to start by talking a bit more generally about copyright in images looking at when images aren’t legally protected, or when protection can get lost or maybe diluted.

One of the hottest topics in the copyright world at the moment is the idea of orphan works. Before we look at these poor creatures, and their cousins creative commons works, we need to understand what images are fully protected by copyright, and what images are completely off the scale anyway, in the public domain. A public domain image is simply one whose copyright protection has run out. But increasingly the distinction between copyright protected and public domain seems to be getting blurred: my talk is about some of these grey areas in between.

Duration of copyright protection

Almost all photographs, at least under UK law, get copyright protection. This means that no-one can copy them, publish them, broadcast them or put them on the internet without a licence from either the copyright owner or from someone else, like a photolibrary, who is authorised by the copyright owner to grant licences. That protection isn’t eternal though. Copyright, unlike trade marks, but like people, has a finite lifespan. Photographs are normally only protected during the life of the “author” and then for another 70 years starting at the end of the year in which the author died. Sounds simple: if a photographer died in 1935 all his photographs are now in the public domain; if he died in 1936 then they are all still protected by copyright until the end of this year.

As always in anything to do with the law, it’s not actually as simple as that. There are two main complications: photographs by unknown photographers, and revived copyright photographs.

Duration: unknown authors

It’s obviously important to be able to work out whether an image is still in copyright or has fallen into the public domain. To know this you need to know when the author died. You can usually find out when someone died if you know who they were, but if you don’t know who took a photograph you have a problem.

The law deals with this by setting a different length of protection for works by unknown authors. An unknown author is one where “it is not possible for a person to ascertain his identity by reasonable inquiry”.

The length of protection for unknown author photographs is linked not to the death of the author but to either the year in which the photograph was taken, or the year in which it was first published. If a photograph by an unknown author is never published it goes out of copyright 70 years after it was taken. If, on the other hand, the photograph is published at any time within that 70 year period, protection lasts for another 70 years after publication. In theory, that could add up to 140 years of protection. In practice, most photographs which are published are published early on in life, so the protection is much shorter.

Duration: revived copyright

What about revived copyright photographs? These are very peculiar creatures. Normally, once a work goes out of copyright, that’s it, in copyright terms it has fallen into the public domain and is dead. But in 1995 a strange thing happened. The term of protection was increased across Europe to life plus 70 years. In the UK photographs taken before 1956 were at that time still only protected for 50 years from when they were taken. Photographs taken in 1944 or earlier had all already fallen out of copyright, whether or not the author was still alive. The new life plus 70 years term, however, was effectively back dated. So long as the photographer hadn’t died before 1925, all their photographs were rescued from the public domain and came back into copyright. Photographs taken before 1945 came back into copyright as revived copyright works.

11 years on, revived copyright photographs are still photographs taken before 1945, but the author has to have died less than 70 years ago from the end of 2006 rather than 1995, so the photographer has to have been alive on or after 1 January 1936, not 1 January 1925.

Revived copyright works were lucky in one sense: they came back to life in quite an unexpected kind of way. They are, however, very much the poor relations of normal copyright works. They suffer from two severe disabilities.

In the first place, you don’t need the copyright owner’s permission to use a revived copyright work. It’s a fundamental principle of copyright law that the copyright owner has the right not just to charge money for usage, but also to refuse permission to use a work. This doesn’t apply to revived copyright works. Anyone can use them, provided they notify the owner of the intended use. The copyright owner is entitled to charge “a reasonable royalty or other remuneration” which can be determined by the Copyright Tribunal if not agreed (at least it can in theory – I’m not sure if it ever actually happens in practice). But the owner can’t say “no” and his negotiating position is therefore very weak.

Even worse than this, and this is where we come on to the idea of orphans, if the copyright owner is unknown anyone can use the revived copyright photograph, without permission, and without any obligation to pay money. A copyright owner is unknown if his name and address “cannot by reasonable inquiry be ascertained.” Not just identity, but “name and address”.

Normally speaking, if you don’t know who owns the copyright in a photograph, or can’t track them down, you have no legal right to use their work. You can go ahead and risk it if you want, but you’re risking being sued for infringement including having to pay lawyers’ costs. That, in practice, is quite a deterrent.

This, as we’ve seen, is not the case with revived copyright photographs, but these by definition are all old photographs taken before 1945. Apart from that the general rule applies: photographs are all either fully protected or fully in the public domain.

Section 97(1)

There is only one exception to this, an exception so minor that I’ve never come across it in practice. Section 97(1) of the Copyright Act gives a limited defence to copyright infringers if they “did not know, and had no reason to believe, that copyright subsisted in the work to which the action relates.” This is really minor. The example given in the text book is of a photograph pronounced by experts to be the work of A, who died 80 years ago, which is in fact the work of B, who died only 60 years ago.

Even then, you don’t get any actual right to use these obscure works. The copyright owner can still get an injunction to stop the use of the work, and can still claim any profits you made from using it. What he can’t do is claim damages.

Orphan works

That’s the legal background in the UK to the debate now surrounding the idea of orphan works. So what exactly is an orphan work?

The United States Copyright Office published a 127 page report on the subject of orphan works. It defines orphan works as “a term used to describe the situation where the owner of a copyrighted work cannot be identified and located by someone who wishes to make use of the work in a manner that requires permission of the copyright owner.”

The report looks at different ways of making it easier for people to use orphan works without being put off by the fear of large damages claims and legal costs. Four different categories of orphan work use are described:

1. Uses by subsequent creators

By this they mean “situations where subsequent authors and creators wish to incorporate existing works into their own creative expressions.” For example, “an author or publisher that wishes to include a photograph in a new book”. Or, in other words, a typical client of a photolibrary. This should be ringing alarm bells, if you’re a photolibrary.

2. Large-scale access uses

By this they mean “situations where institutional users wish to make a large quantity of works available to the public.” Typically, academic or non-profit institutions, such as libraries, archives or museums, who maintain vast quantities of works many of which have been donated with very little information about copyright ownership. These users would like to digitise and put collections online, or incorporate them in other activities which are usually non-commercial.

3. Enthusiast uses

By this they mean “uses by enthusiasts of a particular work, or hobbyists or experts in a particular field.” For example, genealogical records and old software programs which are no longer available commercially, which enthusiasts would like to republish on a limited basis or put on the internet for other enthusiasts to share.

4. Private uses

By this they mean “use by individuals for personal purposes, or private uses.” The most common example of this that the Copyright Office came across involves a user who wishes to make a reproduction of a family photograph, but the original photographer is unidentifiable, or long gone.

The idea behind all this is that the public as a whole would benefit, and copyright owners not be greatly prejudiced, if works whose owners are difficult or impossible to find could be used more freely. There are different ways of implementing this that are currently being examined. For example, you could keep the requirement to pay usage fees if the owner comes forward, but not allow lawyers’ fees. You could give the owner the right to stop the use, or you could take away the owner’s right to an injunction.

The large-scale access users, the libraries, archives and museums, generally agree that an owner who objects should have the right to stop the use, but they often argue that no usage fees should be payable – they say that they simply can’t afford to pay each owner in a massive collection of works, and the use is generally non-commercial anyway.

Subsequent creators, on the other hand, oppose injunctive relief, whilst generally being willing to pay licence fees. They don’t mind paying for the photographs they include in a book if the owner comes forward, but they don’t want to risk publication of the book being interfered with.

Copyright systems all over the world have to strike a balance between the monopoly rights of copyright owners and the general public interest in the spread of knowledge and culture. My personal view is that the whole concept of orphan works is extremely dangerous and risks seriously eroding the rights of copyright owners, including photographers and photolibraries.

In theory it might be quite a good idea, but applying it in practice is something else. I can see the logic in it for archives that want to digitise their collections on the internet on a non-commercial basis. But allowing publishers to use photographs where the copyright owner can’t be located is a dangerous idea for rights owners. Pre-1945 photographs perhaps, we already have that as I’ve described earlier, but going further than this would be a radical step.

Even the term “orphan works” is misleading. An orphan is a child whose parents are dead. We’re talking here not about photographs whose owners no longer exist. That happens when a company owns a photograph and is dissolved without disposing of the copyright, or when a copyright owner dies without any heirs. Even these photographs, the true “orphan works”, don’t become public domain, they become what’s technically known as bona vacantia and get looked after by the Public Trustee. We’re actually talking here not about orphans, but in practice half the time just about children who get lost for a few minutes in the supermarket!

It seems likely that some kind of orphan work provision will be passed in the USA. It’s currently being looked at in the UK as part of the Gowers review. It could happen here, but hopefully any changes to the law of this kind will be very restricted – perhaps to non-commercial archives being digitised on the internet, that sort of thing.

Creative Commons

Finally, creative commons. What are they? Are they a threat?

Creative commons are sort of the opposite of orphan works. Creative Commons UK describes itself as “a non-profit organisation that offers a flexible copyright for creative work”. The idea is that you can make your work freely available for public use, using a form of licence agreement available from the Creative Commons organisation. Millions of web pages and other works are now freely available to the general public in many countries around the world.

Creative Commons exist, like the orphan works proposals, in a hinterland between the extremes of copyright protection and public domain – the difference being that Creative Commons works are voluntarily put out there by their owners who retain residual elements of control. The slogan of Creative Commons is “Some rights reserved”, as opposed to “All rights reserved”.

There are different types of licence available, depending on how much control the owner of a work wants to retain. In some cases creative commons works can be available for commercial use, but usually this seems not to be the case. There are restrictions on sub-licensing, so you won’t be able to stock your photolibraries with creative commons images.

Earlier this year a Creative Commons licence was tested in the Dutch court. Adam Curry, a celebrity, published photos of his family on a photo-sharing site, Flickr, under a Creative Commons Public Licence Attribution-Noncommercial-ShareAlike 2.0 licence. A Dutch tabloid Weekend reproduced four of the photos in a story about Curry’s children, in breach of the terms of the licence which, amongst other things, forbade commercial use. Curry sued for copyright infringement and invasion of privacy.

The tabloid claimed that it was misled by a notice on the website stating “this photo is public” and said that the link to the Creative Commons licence wasn’t obvious so it assumed that no authorisation from Curry was needed.

The Dutch court was having none of this: “It may be expected from a professional party that it conduct a thorough and precise examination before publishing in Weekend photos originating from the internet.”

To the extent that people are making images available under non-commercial Creative Commons licences like this then they don’t seem to represent much of a threat to photolibraries, which exist in a purely commercial environment. It seems, as a matter of simple human nature, that people are unlikely to make worthwhile images freely available for commercial use on any substantial scale. Creative Commons would therefore appear not to be a threat, but I’d be interested to hear if anyone has other ideas on this.

Charles Swan

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