Orphan works are typically regarded as those in copyright where either the author has died and no other authority responsible for granting copyright permission can be located, or those works where the author cannot be found or simply cannot be determined.
As can be guessed from this definition, orphan works can be problematic in many ways for cultural institutions and others wishing to re-use such material, whether this be republishing it in another form (online, as in the case of the NZETC), or incorporating it into a new work.
At times, because the author cannot be determined or because the date of death of the author is unknown, the copyright provenance of a work is therefore not known, and those wanting to re-use the material will often err on the side of caution by not re-using the work, instead treating it as if it is in copyright in order to avoid possibly infringing copyright law.
And, with copyright law, there are often complications introduced into the process of determining the copyright provenance of a given work. Although attempts have been made to harmonise copyright law, notably with the Berne Convention of 1886, it often differs markedly from country to country. As one example, the copyright term in the EU generally lasts until the end of the 70th year after the death of the author. However, in New Zealand, this term lasts only until the end of the 50th year after death.
There are also many exceptions and special cases, including transitional provisions which mean that the general terms do not always apply, and may instead have to be supplanted by copyright terms of shorter or longer duration (or no duration in some cases) depending on the nature and medium of the work, the date of creation or publication, and numerous other factors.
Another limiting factor in the discussion of orphan works up until now has been the lack of research into the actual extent of the problem: how many of a nations' cultural artifacts fall into the category of orphan works? What impediments does this cause for those cultural organisations that wish to re-use such works?
The JISC report is timely, as it provides some rigorous research into this problem, albeit from a UK perspective. Amongst the observations in the report are a number that coincide with ones that we have noticed:
- A large amount of 19th century material is being digitised (because it can reasonably be assumed that most is out of copyright). Similarly, a reasonable amount of recently-published material is being digitised (because it is relatively easy to identify and contact the authors).
However, most 20th century material is not being digitised, because it is likely to be in copyright, and because much this falls into the category orphan works. As the JISC report notes, this is leading to the creation of "a black hole of 20th century content."
- If there is any uncertainty about the copyright provenance of a given publication, then institutions typically tread cautiously, being reluctant to even unknowingly infringe copyright law
- Although there are exceptions in copyright law allowing for re-use of certain material in certain contexts (e.g., the "fair-dealing" provisions in New Zealand law), because of uncertainty about how these provisions apply in particular situations or how far they extend institutions can be reluctant to make use of these exceptions
- Due to the amount of time and resource that can be involved in trying to conclusively determine copyright provenance with uncertain results, many institutions choose simply to direct their resources into areas where they can be more certain of making good use of these resources. One contributor to the JISC report notes that "A total of 150 hours was spent by a freelance researcher, and 152 hours was spent by British Library staff on seeking permissions, which resulted in eight permissions being received."
- there is a conservative estimate of 25 million works which can be classified as orphaned, though this figure could be higher than 50 million
- Of the 503 survey respondents, almost 90% found their service delivery affected at least occasionally by the problem of orphan works, while more than 25% noted that orphan works either frequently affect their activities or affects everything they do.
- As organisations take around half a day to trace rights for each orphan work, there are many millions of person-days required to substantially improve the situation under current conditions
- More than a third of organisations surveyed do not have any specific resources in place to help deal with orphan works.
"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 value and cultural significance are languishing unused."
What can be done?
Although concerned with quantifying the problem rather than concentrating on solutions, the report does proffer some observations and recommendations:
- They note that the majority of survey responses (60%) call for legislative change
- There is a need to harmonise and study efforts across Europe
- More use could be made of licensing schemes
- The possibility of a central rights agency or opt-in register could be investigated
- Legal certainty and safeguards regarding what is an orphan work and how it may be re-used could be established
- There is support for using exceptions to copyright law for "educational purposes"
- Stop the problem from here on through training and awareness
The public's awareness of Creative Commons has been gradually increasing, and initiatives such as the promotion of Creative Commons licensing of New Zealand public sector outputs through the New Zealand Government Open Access and Licensing framework can only be applauded, as they recognise the additional economic value to be gained by making content as freely available as possible, and serve to further raise the profile of Creative Commons.
In terms of the black hole of 20th century content, the main approach we have been taking here at the NZETC is to target those publications for which an existing body or organisation is in a position to grant over-arching permission for online reproduction. For example, with the Official History of New Zealand in the Second World War and the New Zealand Railways Magazine we were able to approach government departments which were in a position to grant permission for these large resources.
However, we are too keenly aware that there are many smaller (and not so small) works that are likely to languish as any copyright permissions will rest with an individual or their descendants (presuming there are any), whether or not they are aware of this.