The Law on Orphan Works vs the Reality of Deprived Creators?

Post by Nevena Kostova

The issues surrounding the new orphan works licensing scheme and the provisions for extended collective licensing (ECL) have been the subject of heated discussions particularly since their coming into force on 25 April 2013. In fact, it is not often that the UK Intellectual Property Office deems necessary to publish factsheets intended to dispel ‘misunderstandings and inaccuracies’ in relation to the newly legislated measures.

In May this year, after a wave of uproar over the implications of the new intellectual property (IP) provisions in the Enterprise and Regulatory Reform Act (ERRA), with some writers describing the action as the abolishment of copyright, the IPO issued what it called a ‘myth and fact information document’.  This document aimed to disclaim some of the common concerns of photographers in particular, who felt that the rights in their works would be jeopardised by the new law.

A closer look at the selection of refuted myths reveals a certain discrepancy between the actual issues and concerns of creators and those addressed by the IPO. The first myth, for instance, holds the notion that the new provisions remove the automatic right to copyright for owners of photos posted online. In fact, it is not the existence of copyright that photographers are concerned about. Just a few days before the ERRA received Royal Assent, English photographer David Bailey wrote a letter to George Osborne MP on behalf of all owners and creators of IP drawing attention to the widespread practice within social media of removing metadata, the source identifying information attached to digital works, thereby rendering such works “orphans”.  With the new law, Bailey summarises, “commercial organisations will be allowed to make money from our “orphans”, but not us, the creators.”

wikimedia Who_is_it

Available under CC BY-SA 3.0 via Wikimedia Commons

As the campaign group stop43 explains, the term “orphan work” is inaccurate as it suggests that an artistic work has no author and has been “abandoned” although this is seldom the case. In essence, the term describes in-copyright works whose right-holders cannot be identified or contacted for permission to use the works at hand. In this respect, the new law has introduced a scheme for the granting of licenses for acts restricted by copyright which would otherwise require the consent of the missing owner. It is not surprising, therefore, that the March 2012 Copyright consultation response by DACS (the Design and Artists Copyright Society) revealed that 48% of their responding members entirely opposed a scheme to legitimise the use of orphan works, while a further 24.4% were undecided on the matter.

Today, the new section 116A of the Copyright, Designs and Patents Act 1988 authorises the Secretary of State to provide, by regulations, for the grant of licenses in respect of orphan works and to specify the person or body authorised to administer such licenses. While the provision itself does not define what orphan works are, it determines that for a work to qualify under the scheme, the owner of copyright in it must not have been found after a diligent search – the specifics of which are to be designed in the further statutory instruments.

A recent article by University of Cambridge Research Associate Eleonora Rosati probed the compatibility of the orphan works ERRA provisions with existing UK and EU laws. A substantial part of the article focussed on the differences in approach and scope between the ERRA provisions and the recently adopted EU Directive 2012/28 on certain permitted uses of orphan works, which the UK must implement by October 29, 2014.

The Directive only concerns uses made of orphan works by publicly accessible libraries, educational establishments and museums, as well as by archives and other cultural institutions bearing public-interest missions. What is more, it currently excludes stand-alone photographs and other images from its scope of application.

Significantly, the UK provisions do not limit the circle of beneficiaries, who may make use of such works, nor do they impose any restrictions on the types of works which fall under the scheme and the potential uses that orphan works may be put to. Controversially, unlike the EU Directive, the ERRA provides for the commercial use of orphan works, hence the relevance of metadata, its removal and the entailing concerns of creators.


Available under CC BY-NC 2.0 by Lst1984

Yet, to do justice to the UK legislator, while the standards of a diligent search are to be specified in implementing regulations, the IPO has clearly reassured that any diligent search will need to be verified by the independent authorising body before a work can be used. To this effect, the UK licensing of orphan works plans to include more safeguards than are currently provided for under the Directive.

Ultimately, however, as Rosati concludes in her article, an ERRA license will allow for a much broader spectrum of uses of orphan works, including for the creation of derivative works. Therefore, the recent UK orphan works legislation could render the future UK transposition of the narrower EU Directive redundant. In fact, it has been claimed that by legislating on copyright issues within the ERRA, instead of a dedicated Copyright Bill, the UK legislator sought to pre-empt the EU framework because Article 8.2 of the Directive ensures that it will apply without prejudice to acts or rights acquired prior to its implementation.

The new orphan works provisions have certainly stirred the minds of many. While academics ponder on the legitimacy of the new UK scheme under EU law, creators, campaign and rights groups lament the new legislation in timid expectation of the concretising statutory instruments.

DRMs: Securing Copyright or Invading Privacy? A Music Industry Approach.

By Guest Blogger: Jesus Manuel Niebla Zatarain

Is DRM really the answer to the need to strike a balance between the protection of a creators’ copyright and the interests of the consumer? Is it a good option for creators? A brief look at the history of DRM in the music industry highlights some concerns …

There are few human creations that have had such a huge impact on everyday life as the internet. It has reshaped the way we see the world, making it smaller, more connected, and providing an electronic highway that has allowed human creations to be shared with a wider spectrum of people than ever before. It has been used to provide access to a broad range of services such as e-mail, electronic transactions, educational sessions, and even government services.

The impact of this digital shift was also embraced by a number of content industries including the movie, music, literature, and video games sectors. As access expanded so too did both the number of potential clients and available business opportunities. As a result, and within only a short period of time, many providers moved from solely selling their products through physical devices to selling them in digital forms also.

However the initial implementation of digital technologies lacked a proper means to deal with the unwanted aspects of the new distribution channel. Chief amongst there was the proliferation of unauthorized copies – more commonly referred to as digital piracy. Several industries quickly came to realize that implementing digital sales channels may, in actual fact, turn out to be prejudicial to their businesses if it was not possible to find some way to limit the spread of illegal copies.

The music industry however arguably failed to adapt to this new technological reality in a timely manner. Experts state that the music industry hesitated when presented with the realities of the new situation and did not take a definitive position in relation to the online market early on. This made it an easy target when it came to accessing and distributing their material illegally.  The lack of a coherent security strategy prevented the music business from being able to make an efficient stand against illegal distribution. Instead the industry, with misplaced confidence, relied on their belief that that illegal copying would soon become controlled and that, as was the case in the previous vinyl and cassette era’s, the quality of the original products would continue to be superior to that of the illegal copies.


Available under CC BY-SA 2.0 by g4ll4is

Indeed before the arrival of Compact Disks (CD’s) the making of unauthorized copies was much less convenient due to the amount and size of the equipment needed to do so. CDs changed this as they meant that practically every person that owned a personal computer owned all the necessary equipment for creating copies (see p.7-8).  This brought about a late attempt to increase the security of music distributed on the Internet in order to counteract the ease with which consumers could take such music and produce potentially unlimited perfect copies of it on CDs.

The growth of P2P networks and the mobility of the servers however made preventing the dissemination of files almost impossible to accomplish once they were in the wild. As a result, and after dealing with several different positions, music industry managers decided to adopt an approach centred upon preventing the file from being copied in the first place. With no copy, the logic ran, there would be nothing to distribute. To this end tools based around the concept of a digital ‘lock’ were developed to help defend creations against unwanted uses. Such tools were known as Digital Rights Management – or DRM for short. The expectations surrounding these technologies were initially very high, with authors such as Samuelson stating that: “Copyright industries are hoping that digital rights management (DRM) technologies will prevent infringement of commercially valuable digital content, such as music and movies”.


Image placed in the public domain by Operation Payback

However this new security approach had setbacks from the very beginning. In addition to being technically ineffective, customers were unhappy with the boundaries that the technology imposed upon them, complaining that the technology was limiting their use of the product. DRM technologies restricted, for example the number of times a file could be transferred, played, or even the devices with which it was compatible.

The FairPlay DRM, attached to songs downloaded from Apple’s ITunes before 2009, serves as a good example of the issues that many consumers had with the concept. The system worked by creating a key that authorized the user to play the file that had just been purchased. This key identified the system on which the file was downloaded and allowed the DRM system to keep track of how many times the song had been copied. As Persson and Nordfelth state this approach limited the number of times a user was able to distribute the file (up to five times) – much to the displeasure of many consumers. Furthermore it only allowed these music files to be played on Apple devices, locking out users of other manufacturers.

Along similar lines the Open MG system, designed by Sony BMG to protect the audio files downloaded from its store, limited the playback of the files to Microsoft Media Player, Sony PCs, and Sony music players. In order to be played on Linux systems such as Red Hat or Fedora the file needed direct authorization: it could not be directly installed in the same way as it could for consumers using Windows. Some consumers therefore faced hurdles to the use of their legally purchased songs.


Available under CC BY-SA 3.0 by Skullyvan89

Over and above the consumer backlash, these DRM implementations also suffered from several fundamental design flaws. Firstly, they were based on the concept of ‘checking in – checking out’. This however proved to be a very risky approach from a technical perspective as it left the hosting PC vulnerable to attacks by any moderately-competent programmer. Moreover, such implementations were not able to identify corrupted files making it not only highly insecure but also unlikely to be maintained by the customer. Some DRM implementations caused the crashing of users’ operating systems and even allowed in instances the creation of illegal software entries that could be used by hackers to gain access to personal information.

Overall therefore it can be argued that not only does the framework of today’s DRM lack effective protection for works but that it can also be considered intrusive and can damage the client-producer relationship that is at the base of, amongst many others, the music industry. DRM can also be considered a security hazard due to its deployment of software on the users system which may introduce back-doors and vulnerabilities that would otherwise not be present. For creators therefore DRM offers few upsides: incomplete protection is combined with consumer irritation and security issues.

DRM systems can also be challenged on the further basis that they do not allow the user the full use of their permitted exemptions with regards to copyright. As the Americans would say – it restricts fair use. Users who wish to make a copy of the work for perfectly legal ends – such as to create an accessible copy for visually impaired persons – are unable to do so by DRM systems that cannot distinguish legal copying from illegal. As a result it can be argued that it would be beneficial to consider whether legal adjustments are needed in order to ensure that DRM technologies achieve a better balance between the rightful protection of creator’s copyright and the interests (legal and otherwise) of consumers such as music buyers.


YouTube or TheyTube?

By Guest Blogger: David Komuves


Recent efforts by the video-sharing website YouTube – such as the introduction of original channels and paid subscriptions – show that it is increasingly becoming a distribution network for professional content. Ever since its purchase by Google in 2006 YouTube has been on the path of commercialisation and its place in the online economy has been defined by tensions between copyright, content and revenues. Whilst YouTube still has the potential to be a platform for amateurs and independent artists the growing dominance of commercial content risks marginalising their creations.



Available under CC BY-SA 2.0 by Rego Korosi

YouTube was officially launched in December 2005 and although it was not the first video-sharing website it has quickly become the most popular. As of the time of writing it attracts more than 1 billion unique visitors per month making it the third most visited website on the Internet. It has often been viewed as a democratising platform that has fundamentally altered how people engage with media, with the potential to reshape the whole media landscape. However since its purchase by Google in November 2006 YouTube has been on the path of commercialisation, transitioning from a medium characterised by user generated content to a broadcasting channel dominated by professionally generated videos. Despite Google emphasising that ‘[t]he community will remain the most important part of YouTube’ forces of both legal and economic nature have forced it off this course.

Copyright infringement has always been a major topic for YouTube. These issues have however been framed differently following Google’s purchase of the service. Whereas before the conflict was seen as existing between the media conglomerates and the ‘freedom fighter’ of YouTube, afterwards it became a conflict between big corporations and a target that could afford to pay. In the wake of Viacom’s lawsuit – launched in March 2007 for more than $1 billion in damages – several class actions were filed in the U.S. on behalf of parties such as sports leagues, broadcasters, music publishers and other copyright owners all of whom claimed that YouTube should be liable for any copyright infringements committed by its users. While the Premier League and others have recently decided to drop their case Viacom v. YouTube is still on-going after 6 and a half years, concerning a version of the site that has not existed since the October 2007 date when YouTube first introduced video identification tools.

These video identification tools, known as Content ID, can automatically identify matches between files submitted by content owners and those videos uploaded to the site.  Content owners are then given the option of deciding between leaving the video unaffected, blocking it, or claiming the right to run advertising with it in a revenue splitting agreement with YouTube.

This still means that in situations where someone else owns the copyright to content in a video (such as to a song), and asks YouTube to take it down, the video will be removed. However if the copyright holder decides instead to ‘monetise’ the video, it will instead remain available and generate income from advertising. This happened for example with the song ‘Harlem Shake’ when it went viral this February, spawning thousands of cover versions uploaded daily to YouTube.  These videos hit a total of 1 billion views just 40 days after the first upload generating revenue for both the record label Mad Decent and YouTube.

Harlem Shake

Available under CC BY 2.0 by Marie. L.

Indeed popular videos are the lifeblood of the site. YouTube mainly relies on advertising to generate revenues and Google is trying everything it can to get a return on its investment. The site needs content that is popular in order to persuade advertisers to spend their money advertising through the YouTube platform. While amateur videos form the majority of content they are barely watched in contrast to the videos of major media companies: as of today all but one of the 20 most viewed videos of all time are professional music videos. Furthermore, it may very well be the case that user-generated content is not necessarily the kind of content advertisers want to be associated with: it might contain a controversial message; be low quality; or possibly infringe upon copyright.

Even before the Google buyout YouTube had attempted to partner with major media companies to provide content for the website. Warner Music Group agreed back in October 2006 to provide its library of music videos and to allow YouTube users to incorporate its music and video footage into their own videos. Their main condition was that Warner and YouTube split the income drawn from advertising that accompanied these user-generated videos. However in December 2008 Warner rescinded the agreement due to its dissatisfaction with the revenues generated.

When YouTube was forced to turn instead to smaller partners such as the NBA or Ford the decision was taken to start building its current business model: providing branded channels featuring a specific partner’s content. YouTube formed partnerships with hundreds of companies who contributed their material to the site whilst around the same time inviting those of its users with the most-viewed videos to join its revenue-sharing deals. The business model of YouTube began to shift towards becoming a distribution network for commercially produced professional content: the kind of content that will make the site profitable.

Recently YouTube continued to move further in this direction by enabling any video creator who has 10,000 subscribers to set up paid channels and charge a fee for access to their content. This follows in the trend of previous experiments by the service, including their 2011 launch of a paid video-on-demand service and their investment of over $300 million in upwards of one hundred ‘original channels’. Most of this funding went to well-known personalities (such as Madonna and Shaquille O’Neal) and content producers from the TV, film, music, news, and sports industries along with so-called multi-channel networks. With these moves Google hoped to extend its audience, attract more advertisers, and eliminate the need to negotiate with big studios for premium content.

Additionally the website layout has been changed several times to more prominently feature professionally generated and promoted videos over those of ordinary users. It can be argued that these changes do not go along with the YouTube slogan of ‘Broadcast Yourself’ as the emphasis has become more and more on distribution and consumption rather than creation. The message being portrayed is that user-generated content is not as desirable as professional content because of its inability to attract sufficient advertising to make a profit.

What does this all mean for individual creators? Although the increasing number of professional videos does not automatically wipe out user-generated content, and YouTube still has the potential to be a platform for amateurs and independent artists, the growing dominance of commercial content might very well overshadow and marginalise their creations. Additionally the current payment mechanisms structured around professional level content may benefit Google and its corporate partners but not generate enough revenue to support independent creators. Although the revenue sharing program was expanded last April – allowing anyone who meets certain criteria to become a ‘YouTube partner’ and monetise their videos – many contributors have remained disappointed by their earnings

This raised a key question: Will YouTube continue to be a home for individuals to share their content, or will it increasingly become dominated by major corporations? We might find out soon…