stop confiscation of your property and Human Rights in the UK Enterprise and Regulatory Reform Bill

Accessible analysis of Hargreaves' Report - ECL and Orphan Works

Dr. Gillian Spraggs of Action on Authors’ Rights has published the third in a series of articles analysing Hargreaves’ Report.

Her first article covered Hargreaves’ proposals on Fair Dealing, and her second investigated his proposed Digital Copyright Exchange. This one concerns itself with Hargreaves’ proposals for Extended Collective Licensing of our work, within which he includes ‘a solution for orphan works’.

Of all these articles, this is the most important as it clearly and incontrovertibly reveals Hargreaves’ purpose: to enable mass digitisation schemes and subvert the primary licensing of our work, rendering any of our property not registered with his Digital Copyright Exchange as opted-out of these schemes liable to mass commercial exploitation at little or no cost to the exploiters.

Dr. Spraggs says: ‘Hargreaves defines orphan works, conventionally enough, as ‘works to which access is effectively barred because the copyright holder cannot be traced’. [4.52] But in his proposals ‘orphan’ very often means simply ‘a work that has not been opted out of an ECL scheme... anything not specifically opted out of the ECL scheme is to be treated as an orphan for the purposes of mass licensing, regardless of whether its owner is traceable.’

‘What is being presented overtly as a solution to a cultural problem, the existence of works whose copyright owners cannot be traced, is actually a set of proposals designed to override the basic principles of copyright and the standard procedures for rights clearance. The object of this is to facilitate mass-digitisation programmes.’

Who are the intended beneficiaries of this? It certainly won’t be the works’ creators and rights holders, who will receive no direct payment or be able to claim damages beyond the ‘nominal fee’ paid for this use. Dr. Spraggs goes on:

‘...the supporting document Economic Impact of Recommendations... makes it completely clear that these mass-digitisation programmes would include schemes run for profit by commercial entities. Furthermore, [this] document... is explicit about the fact that the mass-digitisation of public libraries and archives, which is presented as a benefit of the scheme, would be done with a view to sublicensing the materials to commercial entities...’

[The British Library has already done this with out-of-copyright work it holds, entering into exclusive commercial digitisation and publication deals with Amazon, DC Thompson/brightsolid and now, BiblioLabs/Apple. Hargreaves’ proposals would enable them, the BBC and others to do the same with our known, parented, copyright work.]

‘Hargreaves mentions ‘national libraries, the BBC archive and private collections’. [4.48] The IPO team mentions the British Library and the BBC. But the IPO document is completely open, as the main report is not, about the fact that a key aim of the proposed legislation would be the possible creation of ‘new businesses around content rich services’.’

Ah. Our Prime Minister’s old friends, those dynamic, entrepreneurial internet startups, the golden hope of our economic revival. The British Library and the BBC, both of whom champ at the bit to plunder commercially our ‘national treasure trove’ of orphaned work. And, of course, Google: there is no need for US-style ‘Fair Use’ in the UK if, under Hargreaves, you can make any use of an unregistered work at little or no cost to yourself.

Needless to say, Dr. Spraggs’ analysis agrees with ours: Hargreaves proposal would entirely breach the Berne Convention Articles 9.1, 9.2 and 5.2, to which the UK is signatory and bound under international law.

Hargreaves and the IPO have been exposed as shabby and devious. As Dr. Spraggs says, crucial detail has been omitted from or fudged in his main report, the document most have read, and left to the IPO Review team’s little-read supporting documents.

Dr. Spraggs again: 'Hargreaves’ proposals are closely similar to Clause 43 of the Digital Economy Bill, which was struck from the Bill at the last minute on the insistence of the parties that have since formed the coalition government. This was mainly due to the hard work of a number of photographers who pointed out the flaws in the legislation.’

After agreeing with Stop43 about the flaws in Clause 43 and the intractable problems of ECL and commercial orphan works licensing, for those same two parties to resurrect Clause 43 now that they are in government would be a national disgrace.

Hargreaves is not all bad. From a photographer’s perspective three of his recommendations should be acted upon without delay: digitisation of all kinds of orphaned media for preservation and conservation purposes; a rôle for Ofcom in regulating digital competition; and the implementation of Lord Justice Sir Rupert Jackson’s recommendation of a Small Claims fast track in the Patents County Court.

It would be best if the Government, after thanking Professor Hargreaves in their official response for his most interesting report, were then to put it onto a shelf to gather dust along with its predecessors and quietly forget about the rest of it. Just like its predecessors.