Orphan Works in Australia Problems opportunities possible solutions
Orphan Works in Australia: Problems, opportunities, possible solutions David Vaile Cyberspace Law and Policy Centre, UNSW Law Faculty d. vaile@unsw. edu. au Higher Ed Legal conference, Sydney, 27 July 2011 www. cyberlawcentre. org
Outline Background Orphan works Main challenges Opportunities Risks Canada: Tribunal Legislation: US, UK, EU Context Constraints Possible elements Search and metadata Due diligence Risk assesment Industry Code Sectoral issues Road map Shape of a solution
Our Background Unlocking IP ARC project
Unlocking IP project ARC research project completed 2010, Prof G Greenleaf http: //cyberlawcentre. org/unlocking-ip/ Open Content, Open Source, Open Standards New models for sharing and trading IP Hybrid business models on continuum of licences Examples: Screenrights, AESN suite. . . Orphan Works as an intractable issue CAL orphan works project arose
Orphan Works Background Opportunities and risks Intractable problem?
Research resources Orphan Works work-in-progress page cyberlawcentre. org/orphan/ References list - Resource_List. htm Timeline - OW_timeline. pdf Interesting contributions Mc. Donald, Ian. ‘Some Thoughts on Orphan Works’, Copyright Reporter, 24 (3) October 2006: 152– 198 Greenleaf, Graham. ‘National and International Dimensions of Copyright’s Public Domain (An Australian Case Study)’ SCRIPTed 6 no. 2 (2009): 259– 360 [Unlocking IP 2009 special edition]. Available at: http: //www. law. ed. ac. uk/ahrc/script-ed/vol 6 -2/greenleaf. asp SBS Statement On Orphan Works [Version 1. 0 February 2011] Available at: www. sbs. com. au/aboutus/corporate/view/id/541/h/ SBS-Statement-on-Orphan-Works-1. 0 -February-2011
What’s at stake Copyright works ‘out of print’ but in copyright, parent lost Works ‘in print’ but with ‘parent’ unlocatable or unresponsive How lost is lost? Closure of business, owners move etc. Real problem: Parent lost, then returns ◦ Proper basis for recompense ◦ Exemplary or punitive award from a court? Cost of search, Effectiveness of search, Standard of effort Are licence revenues collectable? Commercial potential lost (unused) Revenue potential at risk (if it’s too easy to claim you tried)
Main challenges Stakeholder risks Failed attempts Minimalist government? Technology Scale
Stakeholder risks For would be users: ◦ ◦ ◦ Litigation risk: if parent returns No support for Orphan Works self help Should a court punish fake or feeble search? Cost and uncertainty of designing a search Risk assesment, risk management Simpler to do nothing? Owner risks ◦ ◦ Is status quo OK? Potential loss of revenue through non-use Loss through overly generous scheme? Some owners are in worse position than others: Photographers
Failed attempts Canada: go to tribunal and seek permission on individual basis ◦ Expensive, slow, not up to the task ◦ Failure to grasp scale, urgency, cost UK Digital Economy Bill/Act 2010 ◦ Promising scheme in Bill ◦ Mysteriously disappeared at the last minute: photographers lobby US: various bills up to 2010 ◦ Promising schemes, useful sectoral negotiations ◦ None succeed, mostly due to photographers Google Book search ◦ Potential to bypass the problem ◦ Settlement failed early 2011
Minimalist government options s 200 AB scheme (see paper at UIP 2009 conf) too complex, limited Too busy, too poor, other priorities Legislative solution would need to pass many hurdles ◦ ◦ ◦ Priority over eg P 2 P ISP liability Demonstrate something wrong with existing situation (200 AB) Demonstrate macro-economic effects: will it revive the economy Demonstrate stakeholder agreement Demonstrate it would work
Technological issues Easier re-use, distribution, identification, logging, search Lack of central repository, registration list, standard use of metadata Push to convert everything to digital format: convergence, the Europeana project Ease of alteration, potential to hide or crack TPM protections P 2 P, ubiquitous re-circulation, student and young people attitudes Move to make intermediaries liable for end user infringement Hysteria over ‘piracy’, failure to adapt business models to realities of new functionality
Scale and speed OW’s number in the millions to hundreds of millions range Google engineers estimate a trillion items available online (open internet) Re-use creates derivative works easily Item by item judicial consideration and exemption solution seems impractical? Speed of operations of broadcast and digital media much faster than old print publication: hours, days or minutes cf. weeks months or years.
Opportunities Unlocking a treasure trove? New revenue options
Revival and re-use Dormant orphans can be brought back to life? Available for reference, re-use, citation? New potential models for publishers? New formats?
Revenue Commercial users potential to create more compelling content with dormant orphan content Temptation to cheat? A solution must deal with this Owners may potentially risk some revenue if cheats prosper With safe schemen, potential new revene for owners through greater effectiveness in re-uniting orphans with distant parents
Global engagement EU project to make culture more accessible online Moves around the world to help solve the problems of OW Potential for non-legislative intiatives to contribute to climate for less ambitious legislation?
Risks The road to hell. . .
Free loaders ‘I tried, couldn’t find parent, it’s free now? ’ The problem of defining what level of search is enough Potential conflict in a searcher: claim have done enough, really not try Fears of photographers in particular
Red Tape Canadian solution requires lots of litigation style effort for individual items Expense and delay Temptation to require eg registration Current search options fragmented by failure to simplify search
Complexity, no size fits all What works for books may not work for photos Music, in the age of P 2 P Different sectoral ownership models Complex rights to eg AV, film, TV Different speed Different use of metadata
Options Legislation? Other options while we wait?
Canada Scheme based on seeking status ruling/permission from a Tribunal Items dealt with in the hundreds Most approved Expensive Slow, too slow for eg TV production schedules Out of scale?
Legislation: US, UK, EU UK: Digital Economy Act 2010 US: failed Bills EU: Single Markets Act 2011, item 2 of 50 is about orphan works – but limited to eg cultural institution issues
Constraints See above No appetite in Australia Priorities 200 AB Stakeholder agreement Demonstrated effectiveness Macro benefit Political capital?
Possible elements Widespread consultation (see Screenrights, us) Risk management tool? – see UK prototype ◦ Open Educational Resources IPR Support. Risk Management Calculator (January 2011) www. web 2 rights. com/OERIPRSupport/ risk-management-calculator/ Industry Code re Due Diligence? Sectoral models – see SBS? Improved inter-sector cooperation on metadata? Improved online search?
Search and metadata Common standards Use in all digital artefacts Persistent means of identifying owner Transparency to search tools for rights checking
Due diligence Need wide agreement on what constitutes due diligence in search for parent Ideally an industry Code would set out principles and approach Compliance could be taken as eg best practice, good faith, best efforts, indicator of good intentions May not protect against litigation risk entirely May work to limit risk, such that risk management would be viable
Risk assesment Various parameters Ideally based on agreement, code Online tools – see UK sample Would help establish due diligence
Industry Code Balance need for certainty against risk of cheating Support improved metatdata and search capacity Support identification of risk factors Judicial notice?
Sectoral issues Photos Books Film and AV Music Online text
Road map Consultation Watch EU developments Trial risk management Attempt to balance needs, industry preferences Simple solution best; legislation may follow to support
Where does this leave us? A uniquely challenging conundrum In the midst of massive change in technologies, business models Europe charging ahead with a limited cultural model Other Anglophone countries stalemated Chance for local solution consistent with international trends?
Questions/Discussion David Vaile Cyberspace Law and Policy Centre, UNSW Law Faculty d. vaile@unsw. edu. au www. cyberlawcentre. org
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