By Simon Juden

In an article recently published by New Media Knowledge, Sarah Saunders, of image management consultancy Electric Lane, provides a summary of the fierce debate generated around Clause 43. Originally part of the Digital Economy Bill and encompassing new primary legislation on Orphan Works and Extended Collective Licensing, Clause 43 was dropped from the Bill at the final reading, largely due to the fact that many within the photographic creative industries argued that the proposed Orphan Works legislation presented a significant threat to their ownership rights.

Saunders upholds this view, arguing that photographers should take heed of attempts by the ‘powerful lobbying group’ made up of publishers to legislate for Orphan Works in future. As the CEO of a trade association representing book publishers, I would like to offer a view from our side of the fence. Whilst we are certainly sympathetic to the difficulties to photographers that Saunders outlines, we cannot ignore the significant advantages that wider access to Orphan Works will bring, certainly for book publishers, and indeed for the general public. For our industry, the possibility of Orphan Works legislation is a major opportunity, the benefits of which cannot be disregarded by overthrowing all proposals in their entirety.

Orphan Works can be defined most succinctly as in-copyright works whose owners cannot be identified or found, and who are therefore unable to grant permission for their work to be exploited. Figures vary on how many ‘orphans’ exist, but in terms of written works they run into the hundreds of thousands. Unlocking Orphan Works would not only significantly improve accessibility to the UK’s cultural heritage, but it would also transform the experience of researchers, readers, publishers and users more generally. Museums and libraries would benefit through their ability to display previously restricted works, and our national culture and history would be better informed by this enhanced access. Consumers worldwide do not understand why copyright should be used to prevent it, and taking a Luddite, defensive view is bound to exacerbate calls for broader copyright reform – to the ultimate detriment not only of photographers but to the broader creative sector as a whole.

Unlocking Orphan Works should in my view involve a two-step process: amending UK legislation to permit such works to be legitimately exploited and licenses to be granted for their exploitation following a diligent search for a rightsholder; and identifying and applying agreed search processes by which a work can be accurately identified as orphan. The first stage of this process was set in motion when the Digital Economy Bill began to make its way through Parliament. However, the measures posed problems not just for photographers, but for many within the creative industries. Clause 43, whilst introducing Orphan Works, also included proposals for Extended Collective Licensing (ECL), meaning that licenses for works need only be granted by a majority of rightsholders. Those rightsholders who had not granted permission could opt out of the license if they became aware of it at a later date. This section of the Bill was subject to a catalogue of criticisms from rightsholders, but as the General Election became imminent, it was made clear that they would have to choose between either accepting the majority of the Bill as it stood, or allowing crucial Orphan Works legislation to fall.

Critically, the proposed legislation on Orphan Works has never made the progress it needed as part of the Digital Economy Bill. Rightsholders and their representative associations had frequent and direct input into the legislation. The risk remained that, if the legislation should fall, pressure to resolve the issue could lead to the introduction of copyright exceptions to access Orphan Works – viewed by many rightsholders as a disastrous outcome. Orphan Works exceptions cannot ensure ownership rights, nor can they guarantee the crucial safeguards and protections secured through detailed legislation.

As it transpired, many associations, including ourselves, lobbied for amendments to the proposed legislation, which eventually included a number of provisions to allay rightsholders’ fears over ECL. For instance, established collective licensing bodies would in all likelihood be the only bodies to oversee licenses, due to the specific definitions that ruled out other potential candidates. These existing Reproduction Rights Organisations (RROs) have the expertise and authority to deal with the complexities of licensing systems, and would be well-equipped to oversee licenses to Orphan Works.

There were also provisions for rightsholders to be fully consulted before any ECL licenses were granted. It had also been agreed that a more nuanced debate on areas of the Bill could be continued following its enactment, through further consultation. Many within the publishing lobby agreed that there were enough safeguards within the proposed legislation to check any rampant misuse of copyrighted works. Simultaneously, the legislation would resolve a problem that has often plagued the creative industries, namely in meeting public demands to widen access to works. In light of this, the extraordinary opportunity to answer the access issue whilst maintaining protections for rightsholders could not be missed.

Saunders’ depiction of the publishers’ ‘powerful lobbying group’ is less clear-cut than it may seem. Different types of publishers have different priorities, and it is simplistic to group all publishing bodies together. Evidently, the ‘government’s ear’ was not completely ‘selective’ towards publishers’ concerns, as our lobbying factions had to work with proposals which were very often not in our favour.

Whilst we were willing to work with the proposed legislation, we also continue to discuss and support a range of ideas to find solutions to the Orphan Works problem. For instance, we would support legislation based on existing collective licensing systems, authorised for the purpose of granting access to Orphan Works. The responsibility for Orphan Works would therefore lie with existing collective licensing organisations, representing rightsholders, which already have the experience to handle this kind of licensing in a transparent and fair manner.

In addition, legitimate methods of finding and using Orphan Works are currently being piloted, and are supported by many publishers within the industry. Accessible Registries of Rights Information and Orphan Works, or ARROW, is a scheme funded by the European Commission, which will allow for diligent searches of Orphan Works to be conducted quickly and efficiently. The system pulls together available rights information and allows those seeking permission to quickly connect with the rightsholder to request it, or they can be informed, with acceptable certainty, that the work is orphaned. The point of all of this is to find acceptable solutions to the Orphan Works problem which would suit rightsholders’ needs and satisfy users’ demands.

Perhaps this is not an issue that can ever be completely resolved. Nevertheless, the fundamental debate around encouraging access to Orphan Works cannot be ignored. Access to thousands of works would surely be of benefit to the majority of artists, readers, researchers, creators and users of all kinds. As it happens, the government’s ear was bent towards the photographers’ lobby group, rather than the publishers’, and Clause 43 was permitted to fall. Saunders is right in saying that this issue will not be forgotten, but fighting it isn’t a viable option when access to information becomes ever more relevant in the digital age. This is a complex, difficult question that requires answers, compromises and clear solutions if all are to reap the benefits.

About the author

Simon Juden is Chief Executive of The Publishers Association. Simon joined The Publishers Association as chief executive in May 2007. Simon read Pure Mathematics at Emmanuel College, Cambridge, going on to complete a PhD at the University of Bath. He taught at Eötvös Loránd University in Budapest before working with satellites as a scientist and computer programmer. He went freelance in 1997, first as an IT expert and later as a management consultant, working on a variety of programmes within the high technology sector for companies like Vodafone, Data General, Proquest and Manugistics. He joined the board of the Professional Contractors Group (a trade body for freelance workers) in 2001, becoming its full-time chairman in 2004. He left to join The Publishers Association as CEO in May 2007. The production and consumption of digital product is a particular interest of his, and he speaks and writes on publishing in a digital age in a variety of fora within the UK and Europe.

The Publishers Association (PA) is the leading trade organisation serving book, journal and electronic publishers in the UK. The PA’s core service is representation and lobbying, around copyright, rights and other matters relevant to our members, who represent roughly 80% of the industry by turnover.

www.publishers.org.uk