Orphan works survey: why it is needed

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 Unpublished text-based works are often the most likely candidates to be “orphaned” because either the duration of copyright has meant that the link to the rights holders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.

10 thoughts on “Orphan works survey: why it is needed

  1. Simon Crofts

    Thank you for your explanation of the survey. Unfortunately you do seem to be confirming that the survey was intended to reinforce a pre-existing point of view, and that the intention was to avoid most of the key issues in relation to orphan works.

    Whether that was the result simply of a lack of awareness of the main issues, or as a partisan lobbying tactic, is hard to judge, but either way, the survey is an unfortunately shoddy piece of lobbying.

    Photographers are well aware of issues that museums, libraries etc. have with preservation of cultural works, and have, I believe been in favour of limited orphan works proposals that support these ends. The problem is, which the survey and also your post above totally fail to explore, that Hargreaves has gone much further than this, and is trying to introduce commercial use of orphan works.

    Of course, many institutions see a potential income stream from exploiting works that don’t belong to them, and are using the preservation/cultural card to try to tap into that money, no matter what the cost.

    There are a lot of complex issues around this debate, but the survey and blog post roundly ignores them all, and it is clear from the way that the survey is worded that the questions are an attempt to reinforce a myopic view – the very narrow one outlined in the blog post above.

    Had the survey tried to ask some interesting questions: such as the extent to which museums, libraries etc. need to be able to make copies of works for preservation, to what extent for exhibition, to what extent for fund raising, to what extent commercial use is wanted or needed, and made some attempt to measure potential downsides, such as restricting access to future works then the survey might have had some value.

    As it is, it’s only value and the value of the blog post above is to demonstrate that the key issues are either not understood or are deliberately ignored. These matters are raised so often, and so consistently ignored, that it becomes increasingly hard to believe that the ignorance is not cynical and deliberate.

    Hargreaves and the IPO seem determined to ignore the provisions of the Berne treaty, which is one measure of their determination to introduce the proposals no matter what the cost or legality of them. The EU drafters of orphan works legislation seem to have Berne very much in mind when they drafted the proposed EU directive on the issue.

    Why can’t Hargreaves and the likes of the IPO seem able to grasp the issues involved on even quite a basic level? This survey and blog post, with its obvious and blinkered lobbying on behalf of narrow interests, are not helping get the issues out into the open and discussed rationally.

    Hargreaves proposals cannot go through in their current form. Even if they do, they will be challenged and thrown out shortly afterwards on the basis of Berne and/or EU law. Why can’t we have an informed debate in the meantime, and save everyone a lot of wasted time?

  2. Paul Ellis

    Let’s look at some statistics from a recent survey which appears methodologically to be reasonably sound.

    ‘Seeking New Landscapes: A rights clearance study in the context of mass digitisation of 140 books published between 1870 and 2010’, by Barbara Stratton, published by the British Library in September 2011, states the following:

    • Permission to digitise was sought for 73% of the books in the sample. Of these:
    • rights-holders gave permission for just 17% of the books to be digitised;
    • permission was not granted for 26% of the titles.

    Consider that, for a moment. Of the rights-holders traced, MORE THAN HALF did not grant permission for their work to be digitised.

    On average it took 4 hours per book to undertake a ‘diligent search’. This involved clarifying the copyright status of the work and then identifying rights-holders and requesting permissions. From a rights-holder’s perspective, given that the purpose of this search is to breach our human rights, moral rights and copyright as granted to us by the Universal Declaration of Human Rights Article 27 and the Berne Convention Article 9 if we cannot be found, and in many instances fundamentally undermine the economic value of our copyright to us, this does not appear to be excessive.

    Is it really worth disrupting the functioning market in rights to make these self-published and institutionally published ‘orphans’ more widely available? What are the justifications, cultural and economic? What is the value of this material? And to whom the profit, if any? Is this really a ‘treasure trove’, as Hargreaves and British Library CEO Dame Lynne Brindley insist?

    I note that your blog post concerns itself with reciting your well-rehearsed justifications for your drive to legalise your commercial use of orphan works, which presently takes place on a ‘risk-managed’ basis, and extended collective licensing of all works. You do not engage with any of the arguments so eloquently put forward by many commentators on your original blog post.

    When might we expect you to engage in meaningful dialogue with us?

  3. Paul Ellis

    I must also note that your blog post above makes no reference whatsoever to the biased nature of your survey: no admission of bias; no attempt to correct the bias; no withdrawal of the survey as a result of its bias; no recognition that as a consequence of its bias your survey’s results will be both misleading and invalid.

    Rather appositely, this week’s Spectator magazine contains the following from Toby Young, commenting on what appears to be another biased report:

    ‘This is the problem with most evidence-based approaches to public policy. The researchers don’t impartially gather information and only then draw a conclusion. Rather, they start with a particular point of view and accumulate whatever facts support that view.’

    I think we would all be grateful if you would engage in meaningful dialogue with us by addressing this point, Mr. Dempster, rather than hiding behind the anodyne bureaucratic platitudes expressed in your blog post.

  4. Richard Mobey

    The explanation of your survey avoid all explanation of its inherent bias. Any reference on how to conduct a truly neutral survey will highlight all the flaws , thereby rendering it unusable as empirical evidence .

    For such a document to be issued from what should be an academically excellent organisation is unforgivable . That it should be issued from an organisation that is ultimately publicly funded in order to commit blatant lobbynomics beyond the pale.

    By all means conduct a survey , but make it fair , unbiased and circulated a wider audience than those who stand to benefit from a biased response .

    I am puzzled by your comment on the Stop43 group . All of my research has pointed towards a fair and well researched group whose evidence is based on fact rather than uneducated opinion . To my knowledge , they have done nothing to dissuade photographers from completing this survey . Maybe you would like to clarify that point ?

  5. Richard Mobey

    The explanation of your survey avoids all explanation of its inherent bias. Any reference on how to conduct a truly neutral survey will highlight all the flaws , thereby rendering it unusable as empirical evidence .

    For such a document to be issued from what should be an academically excellent organisation is unforgivable . That it should be issued from an organisation that is ultimately publicly funded in order to commit blatant lobbynomics is beyond the pale.

    By all means conduct a survey , but make it fair , unbiased and circulated a wider audience than those who stand to benefit from a biased response .

    I am puzzled by your comment on the Stop43 group . All of my research has pointed towards a fair and well researched group whose evidence is based on fact rather than uneducated opinion . To my knowledge , they have done nothing to dissuade photographers from completing this survey . Maybe you would like to clarify that point ?

  6. Simon Crofts

    “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.”

    I contributed towards the survey, mainly to point out how inadequate it is. The fact that one completes the survey doesn’t mean that one supports its lobbying aims. If the SCA believes that anyone who completes their form must neessarily support their propaganda, they are sorely mistaken.

  7. Richard Kenward

    I find myself in complete agreement with what Simon Crofts, Paul Ellis and Richard Mobey have already said, so will not repeat what has been already been written.

    As one of the founders of Pro Imaging – an international group of full time professional photographers, we feel very strongly that it is important that a stop is made to the creating of even more Orphan Works. This can be achieved in many cases (thereby saving your members from time spent in trying to contact the owners of these works) by supporting ours and others frequent requests that government makes the removal of metadata illegal, and makes provision for punitive fines for any organisation found to be doing this. Metedata of course is the information attached to most professionally created digital files that gives the name of their creator and where they can be located.

    We look to your organisation and members to support and press government to support our call above. Not only will this reduce your members’ workload, it will ensure that members working in the creative industries will have an improved chance to actually earn a living wage, which I imagine most of your members take for granted.

    Kind regards

    Richard Kenward

    Co-Founder Pro Imaging (5 Christina Street, London, United Kingdom, EC2A 4PA)

  8. Peter Bowater

    Even if I believe that your motives for the promotion of Orphan Works Legislation and the weakening of IP are as benign as you state, my credibiity will not change the consequences. Once again, I have to ask if you realise what you are proposing. For your own convenience in preserving our cultural heritage you propose to disinherit the future. If you and your allies succeed in passing legislation based on Hargreaves’ proposals, you will destroy the value in legitimate intellectual property and consequently the point of creating it.
    I believe in the need to preserve the best of our cultural heritage and so do most or all of the organisations that are opposed to Orphan Works legislation. Like your unfortunately worded survey, the proposed legislation is not what you present it to be. As soon as the opportunity is offered to commercialise Orphan Works, and without strict penalties against metadata stripping and so on, it will become a profitable business to create Orphan Works, as in some cases it already has. Any laudable intentions will be washed away in a flood of turpitude which will take most of Britain’s independent creators with it.
    I doubt a government or a bureaucracy’s right to decide or judgment in deciding what constitutes our cultural heritage. The magnificent heritage of the past was preserved by the taste and choice of generations of individuals, collectors, academics and independent institutions who filtered out what they considered to be worthy of preservation. This unconscious selection has left us with a coherent body of cultural treasures. Centralisation, hand in hand with over-mighty bureaucracy and digital technology, makes it possible at huge expense to save just about everything. Do we want to save everything and dilute the achievements of our age in the eyes of the future? And at the cost of reducing future inputs to the work of those who do not rely on the proceeds of their creativity. That must be the surest possible recipe for mediocrity and cultural decline. Is society in your vision adopting a process by which the best independent creators are to be suppressed for the convenience and future employment of bureaucrats and law-makers and to enhance the profits of multi-national conglomerates?
    Incidentally, it was from supporters of the Stop43 Group that I heard about your survey and was invited to complete it.

  9. Peter Bowater

    Perhaps some clarification of my previous comments is in order.

    I believe that the UK’s or anyone’s cultural heritage is chosen and preserved by society and not by government. If government becomes involved it unfailingly chooses to dictate or to fail to make any choices at all. The first buds of a totalitarian state. I suggest as politely as possible that the government and our/their servants should leave creative matters to us the creators. It is our business and not yours. In short I think government should mind their own business and leave us to succeed or fail according to our abilities.

    The proper business of government is to provide rule of law and to protect the rights and property of its citizens and to ensure fairness of contract and a level playing field. Why are we creative people not entitled to normal legal protection for our property and the results of our labours and legitimate sources of income? All citizens are entitled to that and that is all we ask for in compliance with the Berne Convention. We expect normal civil law protection and, indeed, protection against criminal acts such as the theft of our property. It seems that your aim is to undermine these fundamental rights including our human rights. Totalitarianism again?

    Not only do you wish to curtail the above rights for your convenience but you intend to profit from the sale of rights in Orphan Works in order to pay the huge cost of indiscriminately protecting what you purport to be our cultural heritage while at the same time destroying its future.

    As for Stop43, I believe that without that group we would already half way down the road to ruin. It is probably hard for people in your position to appreciate the personal sacrifices made by those, on behalf of other independent creators and future generations, who oppose your alarming schemes.

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