Thank you for all your comments and the interest that our survey has generated. We have read through the comments that have been posted and hope that the points below address the main issues raised by those who have taken the time to add comments to our blog.
As custodians of the nation’s cultural heritage, galleries, museums, libraries and archives regularly acquire analogue works and incorporate them into their collections. The objects that these organisations acquire are normally not digital images, but the original objects themselves. The type of objects most likely to be acquired by the cultural heritage sector includes original paintings, original photographic prints, manuscripts and other archival works, books and journals, sculptures and archaeological objects. The acquisition of born digital objects is still relatively rare, but there are internationally recognised standards regarding provenance in these cases. Consequently, the orphan works issues facing cultural heritage organisations are, to a large extent, related to the analogue back file, estimated at 13 million objects, held at public expense in collections that can only exhibit or make access available to a small fraction.
The cultural heritage sector receives funding to ensure that it creates digital objects, including images, from these analogue collections. This not only ensures that digital images are captured by the sector, together with metadata for preservation purposes, but also widens access to the UK’s cultural heritage so that it can be used for education and research. This digitisation work ensures that images of collection works can be viewed by the public even if the physical objects are either too fragile or too numerous to display.
Although the sector works closely wherever possible with the living creators (and/or their agents) of works represented in an organisation’s collections, often it will acquire works from people or organisations that have no direct relationship with the original creator, such as auction houses, private collectors and members of the public. These objects may change hands many times before a work is acquired by the cultural heritage sector, and the fact that it is possible to own the physical work while not owning the copyright further muddies the waters. Unpublished text-based works are often the most likely candidates to be “orphaned” because either the duration of copyright has meant that the link to the rights holders has been lost; rights holders do not know that they are rights holders; the creator died intestate; or a company was liquidated without allocation of the assets. Such is this problem that 50% of works owned by archives may be orphan works, as reported in the In From the Cold survey.
This means that, despite all best efforts, establishing and contacting the rights-owner of a work is not always possible. However, it will always be “despite all best efforts”. Cultural heritage organisations take their responsibilities very seriously regarding the acquisition and care of collections. Where objects are acquired without any information, curators and collection management specialists will spend considerable time researching objects in order to find out their provenance, history, rights holders etc as well as capturing and storing pre-existing information. They will often research the object on the internet, refer to online databases, such as the WATCH file, carry out research in libraries and archives, advertise in the press, hunt for publications by the same creator and contact trade and professional organisations. This type of research is core to the work of the qualified and skilled professionals working in our cultural heritage sector and carried out in accordance with national and internationally recognised standards, such as SPECTRUM. SPECTRUM is the core standard for collections management and is used in over 7000 museums worldwide. If the rights holder for a collection work could be found, often the professionals working in the Cultural Heritage sector would find them!
Some cultural heritage organisations will take a risk-managed approach. They will decide that, after carrying out reasonable searches to trace the rights holder, if the works remain orphan works it is within the public’s interest and part of their role as publically funded custodians of these works to publish digital images of these objects online. Interestingly, there is anecdotal evidence from several organisations who have noted that putting digital images of their collection works online, which include orphan works, has been positively welcomed by rights holders who have been reunited with objects with which that they had lost touch.
In 2009, the In From the Cold report established that professionals working in the cultural heritage sector can spend over half a day trying to trace a single rights holder. Conservatively estimated, this would mean that it would take in the region of 6 million days’ effort to trace rights holders for the estimated 13 million orphan works that exist within the cultural heritage sector alone.
This is an enormous figure and clearly requires some kind of solution or sets of solutions which recognise and reward rights holders, but at the same time frees up access to these important works. However, it should be noted that the current survey is mainly interested in raising the issue of orphan works as a concern by cultural heritage and education sector and understanding the depth and breadth of this issue. No recommendations have been made in this survey in terms of a policy solution. The aim here is to raise the issue, not outline the solution. To support this, the survey is open to all. While it is primarily aimed at capturing the experience of those working with and in education and cultural heritage specifically, it does permit, as witnessed by some creators, the inclusion of a wide spectrum of experiences. We are supportive of fair and appropriate recompense to all rights holders. We note – and welcome – that despite criticism by the Stop 43 group, the survey has been completed by a number of photographers keen to contribute towards its findings.
We would like to thank those who have taken the time and effort to complete the survey and express their comments via this blog.