Enterprise and Regulatory Reform Bill

Memorandum submitted by the British Library (ERR 38)


Cultural institutions like the British Library, BBC, British Film Institute and the national museums hold many millions of collection items which can be digitised to support research, innovation and economic growth. However, a lack of appropriate mechanisms to clear the rights of in-copyright works on mass hampers efforts to make such material available. We therefore face a "digital blackhole of the 20th century" in the UK whereby much material is not made available online due to an inability to clear copyright in works stretching back as far as the 1870s. [1]

Amendments to copyright law

The British Library supports both the orphan works and extended collective licensing amendments to UK copyright law as we believe the mass digitisation of in-copyright material will have many benefits. The digitisation of 20th century content that is currently unavailable in digital form will lead to a much richer research environment. Researchers and students will literally have access to material that was largely unavailable to them before. This will lead to more use of the content, new discoveries and a more vibrant educational environment.

In addition to this, we believe that new and innovative uses of historical content by private companies will bring with it many economic benefits. This is particularly the case given the demand for English language content internationally. The reissuing of material long out of print in traditional publishing markets, through to the innovative use of content in technology markets, will help drive commerce in British copyright works both here and abroad.

Current challenges

Clearing rights on an item by item basis for thousands of published works is extremely time consuming and expensive. An ARROW [2] study shows that with an average of 4 hours per book, it would take a digitisation project of 500,000 items over two hundred years of rights clearance work [3] . Even then, significant numbers of untraceable works would remain, including an estimated 43% orphan works. This is all in spite of the fact that only a minority of written works published in the 20th century are commercially available.

International context

Many countries already have solutions for orphan works ranging from Canada, India and Japan, through to Scandinavian countries. As a result of the Orphan Works Directive all European member states will have to implement a solution for orphan works but the only beneficiaries of the Directive will be cultural institutions. The key difference between the EU Directive and the UK government’s proposal is that the UK proposal allows for commercial use of orphan works in order to stimulate economic growth, and permits private companies to also benefit from the orphan works licensing scheme.

Extended collective licensing, which allows in certain special circumstances for collecting societies to represent non-members too, has existed in the Nordic countries since the 1960s. It is used in instances of market failure, where a wide range of copyright works are to be used, and individual clearance of them is impractical. The extended collective licences do not replace direct licences with rightsholders and are closely managed through copyright regulations. Essentially, without this form of licensing the copyright works would otherwise not be used. This type of licensing as practised therefore serves to not only remunerate rightsholders, but also facilitate societally valuable uses of copyright works such as mass digitisation or use of copyright material in schools, colleges and universities.

In 2012, France passed legislation that will facilitate the mass digitisation of books also. It is estimated that in France 57% [4] of in-copyright books are either out-of-print or are orphan works. In order to invigorate the e-book market, changes to copyright law were needed to facilitate the digitisation and commercialisation of books that were otherwise only available in paper form on the shelves of libraries.

Protecting the interests of rightsholders

In the case of the Orphan Works licensing scheme, the party wishing to use the work will have to prove to an independent licensing body that it has undertaken a diligent search. Any reappearing rightsholder will also be able to claim royalties owing and request that their work is no longer used. It is also proposed that a list of orphan works granted under the scheme is kept up-to-date and searchable on the web.

Extended collective licensing protects the interests of rightsholders in a number of ways. Only a collecting society that is deemed by government to be sufficiently representative of its class of rightsholder can operate the system. In order to offer an extended licence, the collecting society will have to consult widely within its community, and if the community as a whole agrees to the licence any individual rightsholder that does not want their work to be used can opt out. If a rightsholder, irrespective of whether they are a member of the collecting society or not, finds their work has been used without their knowledge (as is the case with the orphan works licensing scheme) a rightsholder will be paid the appropriate royalty for the use of their work and they can request that their work is no longer used.

July 2012

[1] Conversely in the United States the duration of copyright is much shorter, so no rights need to be cleared in material published before 1923.

[2] ARROW stands for Accessible Registries of Rights Information and Orphan Works towards Europeana http://www.arrow-net.eu/

[3] http://www.arrow-net.eu/sites/default/files/Seeking%20New%20Landscapes.pdf

[4] http://www.senat.fr/rap/l11-151/l11-1511.pdf

Prepared 13th July 2012