Friday, 2 November 2012

Digital Copyright Exchange(s), The Hooper Report and Orphan Works

On Wednesday, the Institute of Brands and Innovation Law (IBIL) of University College London held a seminar to discuss these topical copyright issues. With some material added by me, Marta Safin reports ...

The event was opened by the Chairman, Professor Sir Robin Jacob who compared orphan works' authors to property owners who do not maintain their properties and asked whether they should have the right to their work if they 'cannot be bothered to be found'. He drew a comparison with the landowners' neglect leading to the creation of rights of way or squatters' rights.

Position in Europe

The seminar progressed to a brief summary of the current position in Europe by Maria Martin-Prat,  the Head of Unit 'Copyright' in the IP Directorate of the European Commission. Maria introduced the new Directive 2012/28/EU, adopted on 25th October 2012, on 'certain permitted uses of orphan works'. She described the digital technology as the start point of the development of the Directive, as trying to locate the author who cannot be found seemed an increasing problem, which the Directive is aiming to solve. In Maria's opinion the individual works are not the problem; it is the mass digitisation and mass use of collective works which requires proper licensing which needs facilitating. The Directive is the first piece of copyright legislation with a cross-border effect and the Member States were given 2 years to implement it.

Position in the USA

The situation of orphan works in the US was presented by Shira Perlmutter, the Chief Policy Officer and Director of International Affairs for the US Patent and Trade Mark Office. She described it as 'work in progress', whereby the USA are starting over again, after the first proposal did not pass 4 years ago. The draft law applied to all types of orphan works and focused on the limitation of remedies. It required that a 'diligent effort reasonable in the circumstances' is used: the Copyright Office would have been required to publish guidance on what would constitute diligence. If the owner was found (or "showed up", as she put it), they should be paid reasonable compensation.

The Hooper Report

The next panellist to speak was Richard Hooper CBE, the author of the Hooper Report, who started off by saying that his research concentrated on copyright licensing and processes and organisation of copyrights rather than copyright changes and commercial rights or rights' owners. For the first 4 months of his research Richard looked at streamlining of copyrights' licensing and establishing key existing issues experienced by people working in the industry. The second 4 months of work was spent on trying to find solutions for the identified issues. He chose to focus on the proposals for a 'copyright hub', which has 5 main purposes:

1. It will help people to find their way through the complexity of copyright

2. It will educate people about copyright

3. It will be a place where people are able to register their rights

4. It will be a place for automated copyright licensing system for a high volume, low transaction cost copyright licensing

5. It will act as an authority where prospective users of orphan works can go to demonstrate they have done proper, reasonable and due diligence searches for the owners of those works before they digitise them

The view from the IPO

Edmund Quilty, Copyright and IP Enforcement Director, IPO, started with the Gowers Review, which had touched on the issue of orphan works, and the Digital Britain report which had made recommendations on collective licensing. He mentioned the notorious clause 43 of the Digital Economy Bill, which had been dropped from the Act as eventually passed in the "wash-up" at the end of the last Parliament. The new government had commissioned a new intellectual property review, under a different former Financial Times journalist (ex-deputy editor this time, though Ed seemed to promote him).

He then spoke about the Enterprise and Regulatory Reform Bill, which contains scheme-making powers to deal with orphan works (powers which might now come to be exercised in the course of implementing the directive) and extended collective licensing, as well as a few other copyright matters.

Sir Robin took the opportunity afforded by the need to introduce the next speaker to say that as a result of the directive there would be a registry of orphan works in Alicante, part of the Observatory, adding that he had wondered what there was to observe in Alicante.

The Academic view

Graeme Dinwoodie from Oxford University spoke of the international climate which frames the choices to be made – in particular, the requirements in Berne and Trips that there be no formalities. He reinforced the point that the new Directive reflects the 'country of origin' rule in its art. 4 on diligent search, and complies with the formalities rule from the Berne Convention. This (he noted) was often considered to be fundamental to Berne, but had only been included in the Berlin Act of 1908. Prior to that there was a “one formality” (home country) rule, and the Directive reverts to that approach.

Doing away with the need for formalities, he said, tends to damage the "little guy", because the "big guys" can set up systems to deal with the lack of information about copyright ownership. in the US system, if the "little guy" messed up he would lose copyright altogether.

Graeme pointed to the weakness of the current Directive: the fact that there is still right for compensation even for past uses which might not make it beneficial to go through the diligent searches. On the other hand, he commented on the innovative approach it takes to mutual recognition of orphan status which will be helpful to users.

Questions and answers

The panellists' presentation was followed by a Q and A session and discussion on the links between orphan works and Hooper's 'copyright hub', the practicality of implementing the Directive and the extended collective licences scheme. [I am putting this in a separate posting, as it is based on my notes of the discussion and therefore should be separate from Marta's report - Peter.]

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