Select Committee on Innovation, Universities and Skills Written Evidence

Memorandum 5

Submission from the British Academy



  1.  The British Academy welcomes the opportunity to comment on the work and operation of the Copyright Tribunal.

  2.  The British Academy seeks to promote the interests of scholarship and research in the humanities and social sciences, and is composed of eminent scholars who are elected to its Fellowship on the basis of their scholarly standing and achievement. As the country's national academy for the humanities and social sciences, whose Fellows are both producers and users of original copyright work, the Academy is well placed to consider how the issues raised in the consultation may affect research in these disciplines. Copyright is a very important issue for academic researchers in the humanities and social sciences, because it impacts on the way in which they gain access to, and use, research material.

  3.  Our comments focus on recommendation 29 that the Copyright Tribunal should be responsible for granting licences for the use of orphan works. Orphan works—works either by authors whose date of death is unknown, and/or of which the right-holders cannot be traced—pose considerable difficulties for academic researchers in the humanities and social sciences, who are frequently unclear about the steps needed to comply with copyright requirements.


  4.  The British Academy believes it is important to recognise that the majority of copyright works have little commercial value after a few years have elapsed from publication: the material is out of print, or current catalogue and sales are negligible or not significant. Almost all practical problems relative to orphan works, where the copyright holder cannot be identified, fall into this category. This is unsurprising, since if a copyright remains valuable the holder has a strong incentive to make him or herself known, while if the copyright has little value the holder has no real incentive even to respond to enquiries.

  5.  The main problem with orphan works, as experienced by Fellows of the Academy, is where a scholar wishes to use old material and copyright may continue to apply but the right-holder cannot be traced. In the overwhelming majority of these cases, our experience is that the right-holder will never come forward. There may be a very small minority of cases in which the holder of a valuable copyright cannot be traced, but these few cases should not create complications in the more general case for the normal, conscientious scholar. We believe these few cases are more than adequately dealt with by our proposed remedies.


  6.  While the problems with orphan works can often be addressed by demonstrating that "reasonable efforts" have been made to trace the heirs of a deceased author, in UK law there is currently statutory protection for such efforts only in relation to anonymous and pseudonymous works. There is no protection for works where the present holder of the copyright simply cannot be traced, or the date of the author's death is uncertain. The current lack of coverage in UK law therefore presents considerable practical difficulties for academic researchers.

  7.  As a result, valuable works are often unavailable for academic researchers to reuse for the development of new creative material and the advancement of scholarship. Estimates of the number of orphan works suggest that the problem is significant. For example, the British Library estimates that 40% of all print works are orphan works.

  8.  The British Academy believes that if the author or publisher of an orphan work cannot be identified by reasonable search, others should be allowed to produce derivative works from that material. This will, for example, greatly aid the presentation of historical research, since it will permit the incorporation both of primary and of secondary material that is otherwise still in copyright.

  9.  The Academy therefore supports efforts to amend aspects of copyright and related rights so that there is provision for the use of orphan works. It favours the policy adopted recently by the US Copyright Office, which in January 2006 published the results of its study of the problems related to orphan works (see Their report made a number of recommendations, including setting a standard of a "reasonably diligent search for the copyright owner" and a "limitation of the remedies that would be available if the user proves that he conducted a reasonably diligent search". The Academy considers that it would be useful if the UK could adopt a similar policy and define what should count as `reasonable efforts' (see paragraph 13 below).

  10.  The Academy therefore welcomes the recommendation that the Copyright Tribunal should issue guidelines on orphan works. However it does not believe that the UK should follow the Canadian practice of granting licences for the use of orphan works. The Academy does so on the grounds that:

    (a)  The procedure is unduly onerous, given that it is unlikely in the majority of cases that the right-holder will subsequently emerge.

    (b)  Clear guidelines on what constitutes "reasonable efforts" to locate the right-holders of orphan works should address the current problems and uncertainties.

  11.  Under the Canadian model, a licence to use an orphan work is given only upon payment of a licence fee, which we understand must usually to be paid to a copyright collective society that would represent the untraceable right-holder. The consultation document is unclear whether it also proposes to adopt Canadian practice and introduce licences that would be given only on payment of a fee. The Academy is strongly opposed to any proposal that will require academic researchers to pay to use orphan works when the right-holder has not been identified. As the experience of Fellows and other researchers shows, the overwhelming majority of these right-holders will never come forward, and it is unlikely that the payment of licence fees would be of benefit to the right-holder of the orphan work. Rather, it would be used by the collective society to benefit other right-holders.

  12.  If the right-holder of an orphan work is subsequently located and a fee is required for use of the orphan work, the terms for academic researchers should be set at a modest level, in view of the fact that they will already have invested time (and funds) in making "reasonable efforts" to identify and locate the right-holder.

  13.  In setting the standard for a "reasonable search", the British Academy's own Guidelines on copyright and academic research in the humanities and social sciences (available from might offer a helpful starting point for the Copyright Tribunal's deliberations.

  14.  The Academy decided to draw up these Guidelines because it had found that there was considerable uncertainty and confusion within the academic community about issues related to copyright law. The Academy's Guidelines seek to clarify the situation for academic researchers in the humanities and social sciences. In particular, they provide guidance on what might count as "reasonable efforts" in relation to anonymous and pseudonymous works, and set out some practical steps for other cases, with the aim of keeping a check on expenditure that can be disproportionately wasteful or lead to unjustified abandonment of projects. They reflect current UK law and what might be deemed reasonable practice in this context.

January 2008

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