The headaches involved in setting up digital archives could be holding back cultural organisations from making thousands of historical documents, books and films available to the general public, a report by the Intellectual Property Office suggests.
This is in part due to the lack of legislation on how to handle orphan works — documents that are still subject to copyright but for which no owner can be found. As much as 20% of the 1 million books held by the Natural History Museum in London are orphans, as are between 20% and 25% of the near 8 million documents held at the Imperial War Museum. Under the current system, publishing these works online represents a copyright infringement, even though the owner of the copyright cannot be found to make a claim.
CREATe, a Research Councils UK project at the universities of Glasgow and Bournemouth, has advised the UK government on how to tackle the issue by looking to other countries’ legislation. But after approaching agencies in Denmark, Japan and India, CREATe researchers found a baffling variety of approaches and prices.
“There are potentially hundreds of thousands of memory collections which really should, in the digital age, be made available online,” Professor Martin Kretschmer, director of CREATe said. “Empirically, if you look at the schemes for licensing orphan works that have been tried, they haven’t delivered in any of the seven countries we investigated. One has to learn from the models that haven’t worked.”
The UK should therefore seek to produce a coherent system for orphans and could help digital book projects in particular by opting for long-term licensing arrangements.
The prohibitive costs of getting a licence where one is available is also holding cultural organisations back. In Canada, where the system for awarding licences for using orphan works is more advanced than in other areas, CREATe found that the cost of digitising books on a large scale for non-commercial use come in at around 9p per page. While this may not seem like a lot for individual works, huge price tags would be likely for larger projects. “If you end up with a fee of £1 million per year, then parties able to take the risk reduces to a handful of organisations,” Kretschmer warned.
And one of those organisations could be Google, which has for some years been attempting to digitise every book ever published through its Google Books project. The company has been able to take advantage of the more favourable system that operates in the US to scan an estimated 30 million books. While many of these are out of copyright, it has leant on the “fair use” clause to scan orphans and even copyrighted material. The project has been stalled as a result of legal action from authors who found that Google had scanned their copyrighted material without consent, but Google has shown little sign of giving up. Concern remains that the firm could end up monopolising the rights to many works. Public organisations in Europe face pressure to get their houses in order before it’s too late.
The UK government has attempted to legislate to solve the problem several times over the years. The 2011 Hargreaves Review of Intellectual Property and Growth described the lack of regulation on orphans as the “starkest failure of the copyright framework to adapt” and warned that without tackling the problem, non-digital archives could be lost forever.
The government is due to set up an authority to deal specifically with orphan works in the near future but is yet to announce a clear approach to licensing.