David Vaile Cyberspace Law and Policy Centre, UNSW Law Faculty [email protected] Higher Ed Legal conference, Sydney, 27 July 2011.

Orphan Works in Australia:Problems, opportunities,

possible solutions

David VaileCyberspace Law and Policy Centre, UNSW Law Faculty

[email protected]

Higher Ed Legal conference, Sydney, 27 July 2011

www.cyberlawcentre.org

Outline

Context Shape of a solution

Background Orphan works Main challenges Opportunities Risks Canada: Tribunal Legislation: US, UK, EU

Constraints Possible elements Search and metadata Due diligence Risk assesment Industry Code Sectoral issues Road map

Our Background Unlocking IP ARC project

ARC research project completed 2010, Prof G Greenleafhttp://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

Unlocking IP project

Orphan Works Background Opportunities and risksIntractable problem?

Research resourcesOrphan Works work-in-progress page

cyberlawcentre.org/orphan/References list - Resource_List.htmTimeline - OW_timeline.pdfInteresting contributions

McDonald, Ian. ‘Some Thoughts on Orphan Works’, Copyright Reporter, 24 (3) October 2006: 152–198Greenleaf, 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/vol6-2/greenleaf.asp SBS. 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 challengesStakeholder risksFailed attemptsMinimalist government?TechnologyScale

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 s200AB 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 P2P ISP liability◦ Demonstrate something wrong with existing situation (200AB)◦ 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 P2P, 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.

OpportunitiesUnlocking 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?

RisksThe 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 P2P Different sectoral ownership models Complex rights to eg AV, film, TV Different speed Different use of metadata

OptionsLegislation?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 200AB 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.web2rights.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/DiscussionDavid VaileCyberspace Law and Policy Centre, UNSW Law Faculty [email protected]

www.cyberlawcentre.org