In from the Cold: An assessment of the scope of ‘Orphan Works’ and its impact on the delivery of services to the public
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Organisations across the UK’s public sector are responsible for the management of and provision of access to a huge range of content in many formats. These are likely to range from works with high commercial value, such as fine art and commercial films with attributable artists and/or rights holders and collecting societies, to works of low commercial value but high academic, cultural and historic worth, such as documentary photographs, letters and sound recordings, where a recognised rights holder is unlikely.
Public sector organisations have a critical role as content brokers to other public sector organisations, to users and to the commercial sector, particularly the creative industries. In their capacity as custodians of this content, they will often straddle the mutually inclusive roles of both rights users and rights holders of this content. As rights users, they will be obliged to seek permission for providing online public access to the vast majority of content still in copyright that they own.
The extent of copyright duration in much of this material1, as well as the likelihood that many of these works in copyright are likely to have been created by amateurs, means that a significant proportion of works owned by public sector bodies include those whereby the rights holder is unknown or cannot be traced, or so-called ‘Orphan Works’.
The huge scale and significant impact of Orphan Works, conservatively estimated to be some 25 million items across public sector organisations, has led to a ‘locking up’ of content with little or no prospect of these items ever making a meaningful contribution to a knowledge economy without potentially complex and costly ‘due diligence’ processes.
The flow of public sector content and the maximisation of the potential of its value is being disrupted by both the resources necessary to manage copyright and, in particular, Orphan Works. Despite the recognised extent, impact and problem of Orphan Works, particularly for digitisation activities across the globe, there has been a lack of credible evidence to evaluate the scale of the problem across the public sector in the UK. The absence of such an evidence base means that it is nearly impossible to address this problem legislatively and/or through the implementation of suitable licensing schemes.
It also means that the problem cannot be managed nor solutions sought to prevent the occurrence of these works in the future.
In recognition of the substantial obstacles created by Orphan Works across the public sector, as well as the lack of a statistically viable evidence base to underpin any potential solutions, the Collections Trust and the Strategic Content Alliance have been working together on a joint initiative to assess the impact of Orphan Works on the delivery of services to the public. The ‘In from the Cold’ project is the first research of its kind surveying the extent of Orphan Works across the UK’s public sector, drawing on international responses as well as qualitative data from over 80 UK-based public sector bodies.
The aim of this project has been four-fold:
- Define the impact of Orphan Works on Public Sector service delivery
- Research the scale and scope of the problem across the SCA communities
- Provide qualitative evidence of how access to and use of content are inhibited
- Raise the profile of the issue through strategic advocacy and press relations
Key Research Findings
- The average proportion of Orphan Works in collections across the UK’s public sector was measured at 5% to 10%, whilst in certain sectors (archives) this proportion was higher.
- The mid-range estimates put the total number of Orphan Works, represented in our sample of 503 responses to the online survey, at a total of in excess of 13 million.
- Individual estimates suggest that there are single organisations in the survey sample that hold in excess of 7.5 million Orphan Works. If we include even a few of these extreme examples in our calculations, it appears likely that this sample of 503 organisations could represent volumes of Orphan Works well in excess of 50 million.
- Extrapolated across UK museums and galleries, the number of Orphan Works can conservatively be estimated at 25 million, although this figure is likely to be much higher.
- The extent of Orphan Works across the public sector and their potential impact is huge. On average, 89% of participants’ service delivery is at least occasionally affected, whilst 26% noted that the issue of Orphan Works either frequently affects them or affects everything that they do.
- The types of works likely to be Orphan Works are those with little commercial value, but high academic and cultural significance and where rights holders, if traced, would usually be happy for their works to be reproduced. User generated content, works by amateur or local artists and works by artists using aliases were also mentioned as at risk of being Orphan Works.
- A number of factors were identified as leading to Orphan Works, including:
−− Insufficient information identifying the copyright owner
−− The owner of the copyright could not be located
−− The copyright holder has died and there is no further information about ownership of the rights
- Overall, the most common method for managing Orphan Works is the adoption of a risk managed approach (average of 60%), whilst 4% of respondents gave ‘other reasons’. Differences in how organisations might handle Orphan Works occur between sectors.
- Organisations spent on average less than half of one day tracing rights for each Orphan Work. Therefore it would take in the region of 6 million days effort to trace the rights holders for the 13 million works represented in our on-line survey. In certain high profile projects, some organisations had spent large resources of time on chasing rights holders. However time and additional resources are also being used to educate the public and students and train (and remind) colleagues about the specifications of working with Orphan Works.
- At least 35% of organisations across all sectors, regardless of the size of their collections, do not have any specific resources in place to help deal with Orphan Works. It should be noted that responses from non-UK based respondents broadly corroborated the findings across sectoral divides, apart from how organisations handle Orphan Works, which varied between the UK and the international responses.
The scale and impact of Orphan Works across the public sector confirms that the presence of Orphan Works is in essence locking up culture and other public sector content and preventing organisations from serving the public interest. Works of little and/or variable commercial value but high academic and cultural significance are languishing unused. Access to an immense amount of this material, essential for education and scholarship, is consequently badly constrained, whilst scarce public sector resources are being used up on complex and unreliable ‘due diligence’ compliance. Without any kind of UK or European Union-wide legal certainty, there will remain a major risk for all users of Orphan Works. The quantity of Orphan Works and their impact is only accelerating as content is being created and digitised without adherence to any single internationally recognised standard for capturing provenance information.
The data and anecdotal feedback suggests that many public sector organisations are themselves unsure as to the extent of the problem, and that staff awareness and understanding are often limited.
There are also suggestions that often works are selected for digitisation based on the fact that they do not pose any copyright issues, thus creating a black hole of 20th century content. These issues stress the need for an informed and skilled public sector to deal with all the issues associated with copyright-related materials, the necessity for access to resources to deal with Orphan Works, and an informed and proportionate understanding of the nature of the risks associated with the use of these works.
It is crucial that policy makers recognise the problems that public sector bodies face in managing and providing public access online to a vast range of works in copyright (including Orphan Works), and create a suite of appropriate legislatively based solutions. Whether the answer is a UK or an international one, involving a change in practice and interpretation and/or a change in legislation, this is clearly a matter of urgency. Without these legal safeguards, the contribution of public sector content to a global digital landscape will continue to be severely curtailed and the levels of public resources to manage copyright will be unacceptable.
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