Thursday, 26 November 2009

Orphan works legislation on the way

When the Gowers Review recommended that legislative and administrative action be taken to deal with the problem of orphan works - works that appear to be out of copyright but for which no author or copyright owner can be identified - I recall that many practitioners said "what problem?". It seems to me that if you can't identify who to ask for permission to use a copyright work, it's not going to be a work that commands a significant royalty and therefore your exposure is small. That's advice that I think a lot of clients have had from their lawyers over the years - perhaps put aside a contingency fund in case someone appears with a claim for royalties, but it's not likely to come to much.

The British Library evidently thinks otherwise, according to a pretty nonsensical press release on the subject, saying "Orphan Works are a vital stepping stone in the copyright roadmap". It's a sad day when a cultural institution of such importance as the BL produces such a horribly mixed metaphor. And I'd have thought that orphan works were more like roadworks or landslides than stepping stones.

The same press release tells us what the BL's Principles on Copyright Law are. One of them states: "Researchers and libraries need to be able to make available 'fair dealing copies' of anything in their collections, including sound and film recordings that Fair Dealing does not currently relate to." Surely the British Library understands that a proposition is a bad thing to end a sentence with? And what do they mean by "Fair Dealing" (the capitalisation makes it seem more important, doesn't it?)? Section 29 is limited in this way in its scope, but section 30 isn't, so this sweeping statement about fair dealing is only partly correct. And section 29, now that not only does study have to be private but also research must be non-commercial, permits very little, begging the question of what on earth a "fair dealing copy" might be. I thought the Act was alredy pretty accommodating when it came to libraries making copies for those purposes, where the library user (I should probably call them a "customer" or "client") gives the prescribed certificate.

Not a development that I will get excited about. Not, at any rate, in a positive way.


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