EU Aims Their Arrow+ on the Heart of Digital Copyright

There are two rights issues we have written so much about over the last few years, one being the hierocracy that publishing is a rights business without a rights registry and the second being the need to protect orphan works from wholesale abuse and exploitation whilst freeing them from digital obscurity.

On march 10th European commissioner Neelie Kroes spoke to IFRRO (The International Federation of Reproduction Rights Organisations) on the launch of ARROW Plus (Accessible Registries of Rights Information and Orphan Works towards Europeana). Arrow was established in 2008 to identify the copyright status of European works and do through co-ordinating the activities of libraries and rights management bodies to estrablish the details of who owns the copyright in written works. Arrow will now be extended to Arrow Plus and cover multimedia material and is seen as a critical component in the reform of the law surrounding orphan works.

In her speech Kroes stated that Arrow Plus was now aimed at addressing what she referred to as a serious risk of a "20th century black hole" on the internet. She stated that ‘estimates of the number of orphan works in cultural institutions vary from ‘around 20% for films and slightly less for books, at the low end, to up to 90% for photography at the high end…The British library estimates that 40% of works in their collections are orphan and over 1 million hours of TV programmes from BBC archives are not used due to the impossibility or the disproportionate cost to trace rightholders – and the risk of a subsequent legal action is simply too great for this material to be made available online.’

She went on to say that, ‘while the US is looking for solutions through complex judicial means, Europe should move forward and find innovative practical solutions for tapping the huge treasures of our culture.’

Kroes importantly outlined her “Vision” ‘One search in ARROW should be all you should need to determine the copyright status of a cultural good in Europe. If it were embedded in the forthcoming Directive on orphan works, ARROW could become the official portal in Europe where you can find essential rights information and do automated searches of rightholders and copyrights. In the medium-term, it could cover all European print works (books, magazines, etc.) in the EU, and afterwards – why not? – also photographic and audiovisual works.’

‘ARROW should become a one-stop shop for determining, easily and quickly, with full legal certainty, whether a work is orphan or not, out-of-distribution or not, and so on.’

We respect that there will be a need to compromise as the Arrow Plus project moves forward but respect that it recognises the two fundamental issues and is attempting to address these not from a single party’s or group’s interest but from a collective standpoint that includes all interests. This alone is a major step forward to that on offer today in the US whilst it awaits Judge Chin’s decision.

Speech transcript

3 Million European Orphan Works and Counting!

The major digital issue, with the still to be resolved Google Book Settlement, is Orphan Works. These are works that are still in copyright but where the rights owner can’t be traced, or fully determined and many believe is a goldmine of works that can’t be legally digitised today. Different countries have different rules over length of copyright and the criteria under which they get impacted. Some claim the number of titles impacted is relatively small and that there is little value in them, other would suggest the opposite. Now a review involving responses from 22 cultural institutions and published by the European Commission claims, that not only books are affected but that there is a significant high percentage of orphan works among photographs and audiovisual collections and the numbers are high.

Google is not the only one looking at orphans and Europeana, which plays a key role in making Europe’s digital resources available online has called on the European Commission to establish a rights clearance system. Our own view is that it’s somewhat hypocritical for a rights industry that calls foul on infringement not to have even the bacsics of a rights registry today. After all,how can an industry be taken seriously when it doesn’t even cover the basics?

The new report claims on orphan books, a‘conservative estimate’ of 3 million orphan books (13 % of the total number of in-copyright books). The British Library in their report claimed that orphan works represent over 40% of all in-copyright material.

The older the books the higher the percentage of orphan works. ‘Vast numbers of items in the collections of the consulted cultural institutions have uncertain copyright status. Even when institutions are intentionally focusing their digitisation efforts on what they believe is public domain material, a lot of effort to establish the exact copyright status is required. Only material from as far as pre-1870 may relatively safely be assumed to be in the public domain, but it turns out that the oldest book still in copyright in the UK dates back to 1859.’

The issue is not confined to books. Film archives from across Europe categorized after a search for right holders claimed 129 000 film works are orphan and works that can be presumed to be orphan without actually searching for the right holders augments the figure to approximately 225 000. In the UK 95 % of newspapers from before 1912 are orphan and a survey amongst museums in the UK also found that the rights holders of 17 million photographs (that is 90% of the total collections of photographs of the museums) could not be traced.

The Accessible Registries of Rights Information and Orphan Works, ( ARROW project) aims to make the procedure for managing and identifying rights ownership more efficient and has been working to connect the databases of national libraries, publishers and rights organisations across Europe and although there is must noise and initial activity much has to be done for it to even effectively scratch the surface of the issue.

What the European exercise shows us is that the issue is not small, is not going away ,covers different media sectors and that there is no silver digital bullet. Everyone wants these works to be made available within the digital world but it is not a simple case of emulating Google’s attempted land grab of orphans, but about setting up a registrar that is available to all and that the commercial interests of the rights owners are protected from commercial abuse.