The one thing that is certain is that the current way in
which we manage copyright is going to have to change. Will it this be for the
better or worse is hard to say as many vested interests lobby and covert those
who they think will make the difference and the levels of media noise in some
quarters grows and some may say may be more about the money than the amicable resolution
of the issues. Copyright is getting more complex in the global, online digital
world and all parties are finding it difficult to find solutions to the issues that
meet with everyone’s approval. In fact who decides what and has the power to
make change is a challenge in itself.
It seems an internet age since Google started its audacious bid
to ‘land grab’ orphan works and although the story is still ongoing the focus
has been somewhat realigned yet again. One would have thought the exercise
would have sharpened the industry focus into some of what was needed , but
maybe the same interests that threatened to rip it apart under the GBS (Google
Book Settlement) have merely moved on to a different perspective.
Five recent and separate stories show that we may be all
wanting change but in joining the dots we may all see a different picture.
First, there is the current petition to restore US copyright to 28 years.
This petition to the White House may appear doomed to fail, but is not without
wider support for a reduction in the current copyright period. The US acting unilaterally
on such a move would be illogical given the global market and this would itself
have impact on others outside the US just as much the GBS would have done. We
treat the petition as noise but indicative of the calls for change.
Second, we recently spoke on the same platform as the
British Library and listened with great interest as they described their new
digital legal deposit process which comes into practice early next year.
Several offline questions later we could envisage many cracks which appear to
have been papered over and there appeared to be some fundamental oversights or business
processes one would have expected to have been sorted by now. However, when asked why not use it to create a digital
copyright repository for UK works, it was clear that this was out of scope, out
of cash and out of imagination. We thought what an opportunity lost. There also
appeared to be assumptions voiced on the adoption of the standard works
identifier which are far from reality.
Third is the recent Hargreaves report in the UK which covers
a wide remit, recommends much but some may suggest appears to be playing more to
the lobbyist that the needs of the market. We certainly applaud the digital
exchange registry, but question whether this should be before or after the establishment
of a rights registry framework and if the purpose is to exchange and sell
rights, does it really address establishing rights ownership? Permission, moral
and secondary rights are as important in the digital world where the work may
be fragmented into many rights elements merely held together under one work.
This interesting piece was covered by our friend and rights
guru,
Laurence Kaye, who commented on orphan works, ‘The committee recommended an evaluation
of a potential orphan works registry should include consideration of the need
for author's rights of identification to persist over and against any waiver
that has previously been made contractually. The report suggested that this
might take the form of a presumed right of identification on the registry
(notwithstanding any previous waiver) unless other factors apply such as the
scope of the waiver itself.’
Forth we have the nationalisation or mass digitisation of orphan
works which has been recently been made statute in France and enables the
National Library to digitise such works within their collection which can then
me made available for free access and potentially commercial use. Some would
suggest that the French government has a tendency, as with their recent VAT on
ebooks, to move first and maybe think of others later. We see more governments following
their own nationalisation programmes, driven again by libraries who may have
their own vested self interest in mind.
Fifth is a recent article by the highly respected legal and
copyright academic, Pamela Samuelson. In this wide raging article she describes
the significant momentum in the US to change copyright and the growing influence
and potential of the Digital Public Library of America (DPLA). The article supports the move toward mass
digitisation of orphans, stating that the DPLA aims to be a ‘portal through
which the public can access vast stores of knowledge online, free, forever.’
Samuelson also intimates that the ‘fair use’ facility may allow the
University libraries to proceed without government backing and that the current
Google snippets and other cases involving the University of Michigan, and
HathiTrust, may be ‘opening the door for them.’
Samuelson also want to see Copyright ‘ shorter in
duration, more balanced, more comprehensible, and normatively closer to what
members of the public think that it means or should mean.’ This says
much, but again is open to interpretation, especially the ‘what member of the
public think’ , or ‘silent majority’ claim implied.
So are we moving forward with common goals and direction? It
would appear that the issue is becoming localised with strong lobbying from the
vested parties. It may be interesting to reflect that the different sectors
that were once joined together by a common format – the book, are different in
their relationship to material, its creators and usage and maybe creating a
silver bullet for all is not a wise move. Should the growing calls for open
access to scholarly and scientific work dictate how all work is copyrighted,
its term time and how its accessed? Should the need top determine the role of
public libraries in the digital world impact all sectors? Should new and
orphans be treated the same? As we increasingly create new forms of works which
will include other media and maybe in a different type of short form, should
these all be subject to the same rules and expression of rights?
Joining up the pieces is one thing seeing the same picture may
be another.
Links:
- ‘Reforming Copyright Is Possible: And it's the only way to create a national digital library’ Pamela Samuelson – The Chronicle
- ‘BIS Committee’s report on Hargreaves Review. Where next?’ Laurence Kaye
- Support the Restoration of Copyrights to their Original Duration of 28 Years
- US Government Paper on Mass digitisation Issues
- European Parliament and Council agreement on Orphans
- French Act Legislative dossiers - ACT No. 2012-287 of 1 March 2012 on the exploitation of digital books unavailable in the twentieth century
