Memorandum 5
Submission from the British Academy
THE WORK AND OPERATION OF THE COPYRIGHT TRIBUNAL
INTRODUCTION
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.
SUMMARY
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.
SPECIFIC POINTS
IN RESPONSE
TO RECOMMENDATION
29
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 http://www.copyright.gov.orphan). 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 http://www.britac.ac.uk/reports/copyright) 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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