Stop43.org.uk stopped Commercial Orphan Works Exploitation in the UK Digital Economy Bill Clause 43







Practical Implementation: The National Cultural Archive

The definition and enforcement of Intellectual Property rights is a complex problem. Ashby's Law of Requisite Variety states that to be effective, any proposed solution to a complex problem must be at least as complex as the problem itself: 'If a system is to be stable the number of states of its control mechanism must be greater than or equal to the number of states in the system being controlled.' In the 21st Century "Intellectual Property rights" are largely synonymous with "digital Intellectual Property rights": most problems arise in the digital domain and must be dealt with there.


Stop43 have devised an innovative, free online machine-searchable metadata registry scheme that makes use of existing, proven software, digital infrastructure and viable Internet-based structural and business models to make cultural digital Intellectual Property including so-called "orphan works" freely available to the public for their Cultural Use; enable rights-holders to find and readopt their "orphan works" and make them commercially licensable; educate the public about Intellectual Property Rights and enforce digital copyright law; streamline the licensing process; and act as a market-making infrastructure strengthening the entire cultural Intellectual Property sector, self-funded by levies on licensing transactions that it facilitates.


This would be a control system of sufficient variety to satisfy Ashby's Law. We believe that our scheme's features of free cultural access, rights enforcement, easy access to the licensing process and removal of "friction" from that process will be of very significant economic benefit.

At present this implementation deals specifically with photographs. Other media have different characteristics and requirements: they are are put to different uses by private individuals and organisations. Having said that, the broad principles and some details of this implementation are applicable to other media and could be applied to the work of visual artists of all kinds, illustrators, writers, composers and musicians, filmmakers and others.

  • Overview

    To practically implement the changes in the IP framework we require it will be necessary to established by statute a cultural digital intellectual property registry linked to other registries. We call our implementation The National Cultural Archive and intend it to be:

    • a machine-readable online metadata repository for all suitable kinds of cultural digital intellectual property*, both orphan and non-orphan, that is free to submit to and use and which makes its contents and the digital objects to which it refers freely available to the public for its Cultural Use;
    • created by a simple redefinition of existing digital infrastructure, technology, products and services such as broadband, search engines, image search software, digital registries, libraries and collections and established by defining a common framework of legal, technological and administrative requirements with which affiliated custodians of cultural digital intellectual property must comply;
    • a practical means of educating the public about intellectual property rights by automatically interceding in potential breaches of copyright at the point of potential breach, and of enforcing copyright in the digital domain whereby creators and rights holders can reassert their rights and reestablish control over unauthorised or orphaned copies of their work, thereby preventing the future creation of orphan works;
    • a market-maker and engine of economic stimulus, connecting all other intending extra-Cultural users to the revenant rights holders of its registered non-orphan cultural digital intellectual property in a quick and simple way and enabling creators and rights holders to conclude equitable licensing transactions with prospective users by way of impartial template-based advice, standard machine-readable licenses and agreements, and facilities;
    • financially self-supporting by means of a small percentage levy applied to each successfully concluded license agreement that it facilitates.
    Registration must be free, simple, automated and mandatory for custodians and publishers of cultural digital intellectual property, who must register works on behalf of their creators and rights holders before publication regardless of how the work was sourced and whether or not the creator and rights holder has already registered the work, unless the creator and rights holder has expressly, voluntarily and without contractual coercion demanded anonymity. Orphan works must be registered as "Orphan, Rights Holder Unknown, Cultural Use Only - No Commercial Use". Registration must be voluntary for creators and original rights holders of cultural digital intellectual property.

    We envisage The National Cultural Archive in practice to be somewhat similar to eBay and be a "virtual" entity consisting not of an institution in the conventional sense but a specialised search engine composed of a suite of technical specifications, software protocols and administrative obligations derived from existing, successful network-based models. There are many examples: commercial picture libraries such as Getty Images, Alamy and Corbis Images; Picscout ImageIRC; BBC iPlayer; Apple iTunes Store; Amazon.com and its "suggestions" system; password-protected web galleries requiring account generation and login to access, etc.

    This approach will enable existing digital collections, public, private and commercial, to become part of The National Cultural Archive, should very significantly reduce its setup and running costs, and enable the nation to gain access to it very quickly.

    * We have used the term "cultural digital intellectual property" to describe pictures, music, text, films and interactive media as distinct from what might be called "industrial digital intellectual property" such as inventions, processes, etc, covered by patent law.

    LINKS

    http://www.ebay.co.uk/
    http://www.gettyimages.com/
    http://www.alamy.com/
    http://www.corbisimages.com/
    http://www.picscout.com/imageirc.html
    http://en.wikipedia.org/wiki/ITunes_Store
    http://en.wikipedia.org/wiki/Amazon.com
  • Free to submit to and use

    Submission to and search of The National Cultural Archive must be automated and free of charge
    , in exactly the same way that submission to and use of Google and other Internet search engines is free of charge. This is the only way in which mass adoption and use of its facilities will result. Other existing registry schemes such as Plus+, Picscout ImageIRC, Creative Barcode and similar limit their market reach by being opt-in and pay-per-click, resulting in limited uptake of their services and increased business costs for their members.

    Software necessary to automate submission must be provided free of charge and be designed to plug into existing widely-used software suites and workflows based upon them. This will encourage uptake by creators and nullify publishers' objections that tracking IP rights-holders is "onerous and expensive".

    To be clear,

    • all submissions and views of any intellectual property made available via the National Cultural Archive must be free of charge to both the viewer and owner of that intellectual property; and
    • all queries of the metadata registry must be free of charge.
    Any payment to the National Cultural Archive or search software provider must be in the form of a levy on commercial licence transactions that have been facilitated by The National Cultural Archive.

    • We do not want payment made to us for the cultural use of our so-called orphan works by the public;
    • We must not bear the costs involved in making available our so-called orphan works for cultural use;
    • We do not want profit to be made by others as a result of our making available our so-called orphan works for cultural use;
    • We want profit to be made by all parties as a result of the switching of extra-cultural uses and users from so-called orphan works to licensable works.
    LINKS

    http://www.useplus.com/
    http://www.picscout.com/imageirc.html
    http://creativebarcode.com/
  • A means of providing free cultural access to all suitable works

    Photographers acknowledge the fact that digital orphan works are a real and growing problem for all sectors which must be dealt with urgently.
    There is also a legacy of analogue orphan works which, if not tackled soon, poses a real threat to the preservation of national cultural heritage. Museums, libraries, archives, galleries and educational establishments hold large numbers of artistic works on decaying traditional media, but are prevented from transferring them to digital media by current copyright law. Without urgent action, these items cannot be preserved or used in any way for academic study and will be lost forever.

    However, the solution to this problem must not be the expense of the careers and livelihoods of the individual and micro-business creators who create most cultural artefacts.

    CREATORS DID NOT CAUSE THE ORPHAN WORKS PROBLEM AND ITS SOLUTION DOES NOT LIE IN STRIPPING US OF OUR RIGHTS.

    Many complicated and damaging schemes have been and continue to be advocated in order to "solve" the orphan works problem, mostly skewed to the benefit of large cultural institutions, commercial corporations and hybrids such as the BBC. Digital Economy Bill Clause 43 was the most potentially damaging attempt to impose such a "solution", except that it did not even limit itself to orphan works but would also have undermined primary licensing between rights-holder and user by means of enforced Collective Licensing.

    Clause 43 fails the Berne 3-step Test because it directly contravenes Berne Convention Article 9 and TRIPS Article 13 by conflicting with "the normal exploitation of the work", and yet at the IP Review for Innovation and Growth event at the RSA, British Library Chief Executive Dame Lynne Brindley announced that she wanted Clause 43 reintroduced unchanged as part of the forthcoming Communications Bill. How fortunate she is to enjoy a reliable salary from the public purse and be at no personal financial risk from her demands, unlike those creators whose businesses and careers she would destroy as a result of them, and how fortunate for creators that Berne and TRIPS stand in her way.

    Clearly something more sensible and equitable is required.

    As we envisage it, by making all appropriate orphan works freely viewable under a revokable statutory license for Cultural Use, The National Cultural Archive should achieve all of the Cultural Sector's practical requirements for orphan works whilst avoiding the collateral damage of slaughtering the geese who lay the cultural golden eggs.

    • In doing away with the complex, time-consuming and costly requirement for "diligent search" it will enormously reduce costs;
    • As a means of enabling rights-holders and their successors to readopt their orphan works it will of itself reduce the orphan works problem; and
    • As an economic engine it will create new revenue streams for rights-holders, their representatives and other stakeholders including the Cultural Sector, in a way that maximises HM Government tax receipts.
    This scheme is practical, fair and equitable. There are no losers.

    LINKS

    http://www.publications.parliament.uk/pa/cm200910/cmbills/089/10089.49-55.html
    http://en.wikipedia.org/wiki/Berne_three-step_test
    http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P140_25350
    http://www.wto.org/english/tratop_e/trips_e/t_agm3_e.htm
    http://www.thersa.org/events/audio-and-past-events/2011/ip-for-innovation-and-growth
  • Enable creators to reestablish control over unauthorised or orphaned copies of their works, make them licensable, and prevent the future creation of orphan works

    In essence, copyright simply means that you cannot use my property without asking me first, paying me if I require it, and respecting my refusal if that is my answer. In the digital era, attempts to control the copying of work are largely fruitless. All Digital Rights Management and copy-protection mechanisms can be subverted. What is necessary, now, is to control how copies are used and for rights-holders to be paid properly for their use if they require it.

    So-called “orphan works” are copyright works for which their owners cannot be found. The so-called “orphan works problem” is almost entirely the result of the unprecedented ease with which the Internet makes it possible to propagate digital intellectual property - the vast majority of images on the Internet are so-called “orphan works” or illegal copies of licensable works.

    Image search software such as Artfinder, Picscout ImageIRC and TinEye makes it possible to propagate creators’ and rights holders’ information, reunite it with “orphaned” digital files, and thereby re-establish proper ownership and control of them. The Picscout ImageIRC represents an existing, functioning example of the technical basis of The National Cultural Archive; Artfinder is exactly the kind of UK-based innovative young Internet company that this Review aims to encourage.

    Structured by the National Cultural Archive, with registration of orphan works mandatory for their custodians as a condition of publication and voluntary for creators and individuals, image search software will be effective in enabling rights-holders to reassert control over unauthorised copies of their IP. In the digital domain, this is the only practicable way to do it.

    Moreover, once readopted an ex-orphan work can become commercially licensable and its rights-holder would be free to enter into a profit-sharing agreement with the work's custodian. If the original is analogue this would contribute to the cost of its digitisation and provide a new revenue stream for the original work's custodian - usually a Cultural Sector institution.

    To avoid infringing the rights of foreign rights-holders, viewing our so-called orphan works in The National Cultural Archive should probably be limited to IP addresses geographically located within the UK legal jurisdiction in the same way that access is limited to BBC iPlayer. Access to licensable works should be global. Worldwide access must be provided for image search software so that foreign rights-holders can find their orphaned IP in the The National Cultural Archive and readopt it.

    LINKS

    http://www.artfinder.com/
    http://www.picscout.com/imageirc.html
    http://www.tineye.com/
    http://en.wikipedia.org/wiki/IPlayer#Overseas_availability
  • Educate the public about intellectual property rights by automatically interceding in potential breaches of copyright at the point of potential breach

    We have heard it repeatedly asserted that improvements will result from education. This can be split into two categories:

    1. Educating clients, commissioners and users about copyright law;
    2. Educating the public.

    In practice we find that in most cases, attempts to "educate" ignorant clients, commissioners and users about copyright law, rights, licenses and usages fail and sour the business relationship. They usually assume that they have "bought the photograph" in the same way that they buy physical objects, and having "bought" it object to any suggestion that there might be restrictions on its use.

    The level of ignorance varies by photographic market.

    How are we to educate the public, who appear to believe that everything they find on the Internet is "free", "in the public domain" and theirs to use? By way of Government Information Films? How even are we to educate the Daily Mail newspaper, which appears to believe that it is possible for a photograph to be "© Internet"?

    Stop43 believes that the only practical way of educating users is by intervening at the point of potential infringement. Systems such as Picscout ImageIRC can do exactly that.

    LINKS

    http://www.dailymail.co.uk/news/article-1336141/Rhiya-Malin-2-died-heart-attack-getting-head-stuck-window.html
    http://en.wikipedia.org/wiki/Public_domain
    http://www.picscout.com/imageirc.html
  • A practical means of enforcing copyright in the digital domain and of reducing academic plagiarism

    Image search software such as Artfinder, Picscout ImageIRC and TinEye makes it possible to propagate creators’ and rights holders’ information, reunite it with “orphaned” digital files, and thereby re-establish proper ownership and control of them. The Picscout ImageIRC represents an existing, functioning example of the technical basis of The National Cultural Archive. Image search software can also be used to police unauthorised use. Getty Images uses the Picscout system to do exactly that.

    Founded upon the capabilities of software such as this, the National Cultural Archive will bring practical benefits of enormous financial significance to individual and micro-business rights-holders including a huge reduction in the cost, time and disruption of policing unauthorised use, a significant reduction in unauthorised use, and a substantial increase in remunerative licensed use.

    To function effectively, image search software will require unrestricted access to "paywalled" pay-per-view and subscription websites, so that rights-holders can search for and find our copyright works on such sites at no cost to ourselves.

    The Internet has enabled a widespread outbreak of academic plagiarism. A metadata registry such as the National Cultural Archive should make it easier to inform potential plagiarisers that their actions plagiarise, and to track and police plagiarism.

    LINKS

    http://www.artfinder.com/
    http://www.picscout.com/imageirc.html
    http://www.tineye.com/
    http://www.gettyimages.co.uk/

  • Remove friction and uncertainty from the licensing process by enabling creators, rights holders and their representatives directly to conclude equitable licensing transactions with users in a quick and simple way.

    Intellectual Property licensing need not be complex or time-consuming.
    Commercial stock photo libraries such as Getty Images, Alamy and Corbis Images have built large, profitable businesses upon systems that make IP assets easy to find; standard, comprehensible licensing terms; immediate payment; and immediate access to deliverables. They must make these systems efficient - their profitability depends upon it. Similar examples may be found for stock film clips, sound effects and "library" music. Apple iTunes represents a comparable system in the consumer space.

    Other examples of standardised usage terms include the "Base Usage Rate" system widely used and understood in the more sophisticated photography markets, as exemplified by The Association of Photographers' Re-Usage Guidelines.

    In the academic field, the joint Reading University/University of Austin, Texas WATCH database of rights holders attempts to remove friction and uncertainty by connecting people who are searching for the rights holder's permission to use work with the rights holders themselves. Other registries with similar aims include Creative Barcode, ARROW and Plus+. As a repository of digital cultural artefacts, Europeana serves a comparable function.

    To be effective the National Cultural Archive scheme must emulate the efficiency, simplicity, standardisation and ease of use of all of these examples by providing efficient search, standardised license usages modelled upon the Creative Commons machine-readable system, best practice Terms & Conditions, and direct links to the revenant rights-holders or their appointed representative for immediate payment and immediate access to deliverables. Of course, the revenant rights-holder's appointed representative might easily be one of the stock agencies mentioned above.

    All existing cultural Intellectual Property can be regarded as "stock" and made publicly available in this way, if it is appropriate to do so for the work in question.

    LINKS

    http://www.gettyimages.com/
    http://www.alamy.com/
    http://www.corbisimages.com/
    http://footage.shutterstock.com/
    http://www.soundsnap.com/
    http://www.dewolfe.co.uk/
    http://en.wikipedia.org/wiki/ITunes_Store
    http://www.ampimage.com/bur.htm
    http://home.the-aop.org/plugins/p13_download_manager/getfile.php?categoryid=18&p13_sectionid=2&p13_fileid=7&p13_versionid=72
    http://www.reading.ac.uk/library/about-us/projects/lib-watch.aspx
    http://creativebarcode.com/
    http://arrow.edu.au/
    http://www.useplus.com/
    http://www.europeana.eu/portal/
    http://en.wikipedia.org/wiki/Stock_illustration
    http://creativecommons.org/licenses/
  • Be a financially self-supporting market-making infrastructure

    To act as an economic stimulus The National Cultural Archive must also include licensable works. This will cause the National Cultural Archive to stimulate economic use of licensable works to the direct benefit of all sectors, and thereby become a profit engine for everyone whilst avoiding the insurmountable problems of the commercial exploitation of so-called orphan works. Individual freelance professionals, semi-professionals, publishers and broadcasters, commercial libraries and the Cultural Sector should all be encouraged to include their entire collections of licensable works alongside their so-called orphan works.

    The National Cultural Archive must be financially self-supporting via levies made on the commercial license transactions it facilitates, in a similar way to eBay's commission on successful auctions and Google profiting from Google AdSense. Transactional links are one well established, widely used and practical mechanism for achieving this.

    LINKS

    http://en.wikipedia.org/wiki/Google_AdSense
    http://en.wikipedia.org/wiki/Transactional_Link
  • Code of Practice

    Only The National Cultural Archive is to be authorised to display online so-called orphan works.

    • Any entity of any kind that demonstrates compliance with the legal, technical and administrative requirements of the National Cultural Archive should be able to join it as an authorised and regulated affiliate.
    • All digital orphan works must be submitted to The National Cultural Archive Metadata Registry by their custodians and categorised as orphan works before any online public use of any kind can be made of them.
    • Custodians of so-called orphan works authorised and regulated by The National Cultural Archive are to be free to digitise all of their IP held on traditional media for the purposes of conserving, cataloguing and preserving it, as recommended by the Gowers Review of Intellectual Property. This is to be enacted as a Permitted Act, not an exception to copyright. The resultant digital facsimiles are to have status and custodial metadata applied to them and be submitted to The National Cultural Archive Metadata Registry as they are created.
    • It is to be legally recognised that a digital facsimile of a traditional work is not in itself a new copyright work. Copyright is intended to protect originality. However it might have been made, a practically perfect copy contains no original material whatsoever and was never intended to; it is a facsimile of the original. Therefore it follows that there is nothing in the facsimile to copyright, no matter how it was made and the level of craft, skill and expense required to make it. Stop43 suggest that businesses built upon making available high quality digital facsimiles such as the Bridgeman Art Library would be better founded upon contract law and appropriate Terms & Conditions of Use digitally policed by systems such as Picscout ImageIRC and Artfinder than on the unfounded assertion of copyright in digital facsimiles.
    • A Code of Practice defining cultural use, imagery suitable for such use, and imagery unsuitable for such use, must be established and adhered to. Non-compliance must result in de-authorisation of the infringer by The National Cultural Archive. The Code of Practice must recognise that not all works are suitable for submission. For example, works depicting minors, that may be private commissions, or works depicting proprietary or obviously commercial subjects may be problematic. Creators should contribute to the drafting of the Code of Practice.
    • All entities that accept submission of IP from the public (broadcasters, Facebook, Flickr, newspapers and magazines, competitions, etc.) must register that IP with The National Cultural Archive Metadata Registry as property of the submitter, based on data captured by the submission, before use of any kind is made of it. For professional photographers this will include IPTC metadata within the image files; for users of Flickr, Facebook and similar the submitter's account details; for IP submitted by mobile devices the IP address, MAC address, IMEI number, GPS position, date and time of submission, phone number or other capturable data.
    • To allay privacy concerns, submitters must also be offered the choice of anonymous, anonymised submission with no data capture, on the clear understanding that by submitting in this way they are knowingly and deliberately orphaning their IP. The default must be registered submission.
    • Online public displays of orphan works by the National Cultural Archive must not themselves be archived by any other means. This is to ensure that so-called orphan works that have been readopted by their rights holders, or displayed in breach of the Code of Practice, can be properly and permanently removed from all display.
    • Any online public display of our so-called orphan works in any way except by way of small, full-image-watermarked thumbnails in search engine results, must be entirely free of adverts, ad links and commercial, political, religious or charity sponsorship messages. Our orphan works must not endorse or generate profit for advertisers or be used in any way to imply endorsement of any commercial, political, religious or charitable philosophy or organisation.
    LINKS

    http://www.official-documents.gov.uk/document/other/0118404830/0118404830.pdf
    http://www.legislation.gov.uk/ukpga/1988/48/part/I/chapter/III
    http://www.bridgemanart.com/?lang=en-gb
    http://www.picscout.com/imageirc.html
    http://www.artfinder.com/
    http://en.wikipedia.org/wiki/IPTC_(image_metadata)
    http://en.wikipedia.org/wiki/IP_address
    http://en.wikipedia.org/wiki/MAC_address
    http://en.wikipedia.org/wiki/IMEI_number
  • Example Pages

    Example Orphan Image Page

    Photograph Copyright © Paul David Ellis, 2006. All Rights Reserved. Layout Copyright © Stop43, 2010. All Rights Reserved.

    In this example, the image is shown surrounded by a red border to denote its “orphan” status.

    • Share Link is a JavaScript button to make it easy to share this page on social networking sites, etc. To be clear, this button shares that page’s address, NOT the image itself. It does not allow embedding in other pages.

    • Click for similar usable images causes image search software to create a “lightbox” of visually similar images that are commercially licensable.

    In this way, a so-called “orphan” image can be made available to the public for their cultural enrichment and at the same time be used to generate a selection of similar works that can be licensed for further use.

    Example Orphan Image Page with Similar Licensable Works

    Photographs Copyright © Paul David Ellis, 2006. All Rights Reserved. Layout Copyright © Stop43, 2010. All Rights Reserved.

    In this example, the Click for similar usable images button on the previous page has generated a “lightbox” of visually similar images. Clicking on the image thumbnail would take the viewer straight to the revenant rights-holder or their representative's website for licensing the image. This link could lead to

    In this way, The National Cultural Archive will have:

    • culturally enriched the viewer by allowing him to see an image that otherwise he could not
    • informed and educated its users that the pictures they are looking at are not “free”, or free to use
    • provided access to a selection of similar, licensable images that might serve just as well for any extra-cultural use
    • linked potential users with the rights holders of those licensable images
    • and, if a commercial license is agreed between potential user and rights holder, stimulated economic activity to their mutual benefit, and that of society at large.
    If this point is reached and a successful transaction concluded, the rights holder should pay a levy to the National Cultural Archive and image search software provider for having acted as “agents” in this transaction. The levy should be a small percentage of the license fee and be automated on the “transactional link” principle.

    Stop43 are in the process of building a working demonstration model of this system.

    LINKS

    http://en.wikipedia.org/wiki/Lightbox
    http://www.photoshelter.com/
    http://www.gettyimages.com/
    http://www.alamy.com/
    http://www.corbisimages.com/
    http://www.bapla.org.uk/index.php?option=com_content&task=view&id=16&Itemid=45
    http://www.nationalgalleryimages.co.uk/
    http://www.apimages.com/
    http://en.wikipedia.org/wiki/Transactional_Link