EnDOW Workshop “Making sense of diligent search”

On the 30th of June 2016, the EnDOW workshop on the diligent search requirement and crowd-sourcing took place at the Institute for Information Law (IViR) in Amsterdam.

The programme of the workshop is available here.

The working group was composed by the project participants, the members of the advisory board and experts and practitioners of the relevant sector. Overall, 30 participants took part to the workshop.

Three main presentations opened a very useful and enriching discussion focused on the diligent search requirement and the process of crowd-sourcing.

Firstly, Maurizio Borghi briefly summarized how a diligent search must be carried out, stressing the requirements provided by the European Directive on orphan works, their ambiguities and possible interpretation.

Then, Maarten Zeistra focused on the crowdsourcing, trying to figure out how to made this mechanism effective and efficient and providing the group with examples in this sense.

The third presentation has been made by Gyta Berasniviciute of EUIPO which provided the group with an overview on the implementation of the Orphan Works Database, its interface and mode of operation. The working group also made a search simulation through the database.

“Food for thought” has been shared by the group and the project participants had the opportunity to listen to the opinion of experts and workers in the sector of libraries and archives.

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Clearing rights for Public heritage collections: Workshop at the CREATe Festival in London

The workshop focused on the orphan works legislation, addressing the main hurdles that cultural institution have to face when carrying out a diligent search of rightholders. The workshop was carried out in an interactive way, by engaging the public in practical “diligent search exercises”, the outcomes of which was subject to panel discussion.

Marcella at CREATe Festival

Maurizio Borghi, Aura Bertoni and Marcella Favale presented the EnDOW project and the survey of the sources for diligent search in UK, Netherlands and Italy (download the presentation here).

Annabelle Shaw (BFI, Associate Partner of EnDOW), carried out a diligent search exercise on two works hosted by the British Film Institute in London:

THE GLOVES OF PTAMES (1914)

Director: Dave Aylott (1885–1969)

Production Company: Martin Film Company

Resources looked up:

According to IMDB bio – Along with his brother Eric Aylott, he co-founded Eylure of London, a British manufacturer of artificial eyelashes. http://www.imdb.com/name/nm0043881/bio

  • Eylure are one of the largest eyelash retailers which still trade today http://www.eylure.com/
  • Contacted customer services email http://www.eylure.com/contact-us to see whether they had any contact with the Aylott family
  • Brand Marketing Manager responded putting me in touch with the family who were able to grant us permission

Result:

  • Permission was granted for three Dave Aylott titles on behalf of the estate

GALASHIELS AND BRAW LADS’ GATHERING (1951)

Production Company: Elder Film Productions

  • C. 1980 the Scottish Film Council (as it was then) donated the 35mm nitrate film print to the BFI National Archive (then National Film and Television Archive)’s Galashiels Collection. Details in the SFC donor file.
  • Scottish Screen Archive, who also have holdings of the film, suggested BFI to contact Scottish Borders Council as the successor to Ettrick and Lauderdale Council, who donated the film to them
  • Sue Bell in Communications and Marketing at the Scottish Borders Council passed my enquiry on to their Museums and Archives Service in case they have any surviving records. They furthermore suggested contacting the film’s sponsor, Pavilion Theatre, Galashiels, which was already underway.
  • A voicemail was left for Fiona Colton, Senior Curator at the Scottish Borders Council Museums and Archives Service and her colleague Paige Hughes located original acquisition paperwork from their archives that revealed the original master 35mm nitrate film, which was donated to Lauderdale and Ettrick Council (now part of Scottish Borders Council) in 1978 and was copied to safety film at Brent Laboratories for the Scottish Film Council, was donated by one Jim Smith of the Old Gala Club, Galashiels.
  • The safety copies were purchased by the Scottish Screen Archive via the Scottish Film Council and the 35mm nitrate original was apparently donated to the National Film and Television Archive (now BFI National Archive) in 1979/80.
  • Pavilion Theatre’s present day manager was very helpful but pointed out that the Pavilion Theatre now is on different premises in Galashiels and is no longer the same entity as it was in 1951. They have no record related to the film and assert they are not in a position to sign any paperwork.
  • It may be possible to trace a surviving relative of Jim Smith (assuming he is no longer alive, which seems credible 64 years later), however, this would require more time than was available prior to publication, so research would need to be carried out after making the film available if the risk to do so is accepted and approved.

 

Report backs up the overly burdensome nature of the “Diligent Search” requirement in UK, Italy and Netherlands

Legislation on orphan works require that a Diligent Search of potential rightholders is carried out in good faith by consulting appropriate sources. However, the conditions set forth by the law to comply with this requirement pose significant burden to would-be users of orphan works. The analysis conducted by EnDOW researchers in three countries (UK, Italy and Netherlands) reveals that carrying out a Diligent Search may require consultation of an overly high quantity of diverse sources of information. Most importantly, the analysis shows that a sizeable share of these sources is not easily accessible or, even, not accessible at all. In particular, the analysis shows that:

  • A total of over 350 different sources have been identified in Italy; over 200 in the UK and almost 90 in the Netherlands.
  • A Diligent Search on published books may require consulting up to 32 different databases in the Netherlands, up to 80 in the UK, and up to 131 in Italy.
  • Of all the sources to be consulted to conduct a Diligent Search, 70% are freely accessible online in the UK, 56% in Italy and 54% in the Netherlands. This means that, depending on the country, from one third to almost a half of the required sources are not available for free (unrestricted) online access.
  • The online availability of sources is the highest for published books (75% in the UK) and the lowest for audiovisual works (only 42% in the Netherlands).
  • Guidelines on how to conduct a Diligent Search have been issued only in the UK (by the Intellectual Property Office); no guidance has been provided in Italy and in the Netherlands.

The study suggests a possible solution to this problem that involves soft-law intervention to establish hierarchies among sources for Diligent Search, with a diversification between compulsory and optional sources, depending on their relevance and accessibility. Moreover, the study suggests that a Diligent Search should be considered to be carried out in good faith also when sources that are not freely accessible online are disregarded.

The Report on “Requirements for Diligent Search in the United Kingdom, the Netherlands, and Italy” is available for downloading from the Resources page.

Download the press release here.

EnDOW Progress meeting in Milan

On the 19th and 20th of January 2016, at the Università Bocconi in Milan, the first Progress Meeting of the EnDOW Project took place. All project participants were present. See the Agenda of the meeting here.

A number of presentations illustrated the status of the various work packages.
Marcella Favale gave an overview of the work accomplished so far in the Work Package N. 1 and the planned next stages (here);
Simone Shroff and Maarten Zeistra presented a pilot flawchart for the EnDOW platform and the Website of the project;
Kris Eriksson reported on the progress of the Work Package N. 3 and explained the plans for the forthcoming round of interviews to representatives of cultural heritage institutions (here).

Overall, a very productive meeting, whose minutes are available here.

EnDOW presented at Europeana Licensing Workshop in Luxembourg

The first outcomes of EnDOW project were presented and discussed at the 4th Europeana Licensing workshop in Luxembourg on the 26th and 27th November 2015. The workshop was organised by the Bibliothèque Nationale de Luxembourg, Kennisland (Amsterdam) and the Institute for Information Law (IViR) of the University of Amsterdam.

The discussion focused on the “diligent search” requirement of the Orphan Works Directive. A mayor issue arises in respect to accessibility of sources: according to our survey,  69% of the compulsory sources are freely accessibile online in the UK, but the value drops to 41% in the Netherlands and 24% in Italy. This means that performing a diligent search on works contained in library collections is overly complicated in these countries. See the presentations for more details:

  • Crowdsourcing diligent search: a solution for the orphan works problem? (Maurizio Borghi) >> download here
  • The accessibility of the sources for diligent search (Marcella Favale) >> download here

 

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Crowdsourcing diligent search: a solution for the orphan works problem?

On 29 September 2015 the Digital Catapult Centre in London hosted a one-day workshop on Copyright and orphan works, which brought together legal experts, archivists and museums curators to explore challenges and opportunities of the recently implemented orphan works legislation.

As part of the workshop, Maurizio Borghi introduced the EnDOW project and the concept of relying on crowdsourcing to reduce the costs of diligent search for cultural institutions.

The slides presentation can be downloaded here.

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Crowdsourcing

Crowd-sourcing is an organization model that harnesses the power of crowds to solve problems (crowd wisdom), to fund initiatives (crowd funding), or to produce artworks (crowd creation). This model is increasingly implemented by businesses and by not-for-profit organizations. It has already produced astonishing results in the fields of information technology and biotechnology.[1]

In particular, the concept of building upon collective intelligence to perform legally binding searches of information has been successfully applied in patent law.[2] Crowd-sourced systems of prior art searches have been used by patent offices, including the US Patents and Trademark Office and the IP Australian Office. Recently the UK Intellectual Property Office has also run a pilot “peer to patent” experiment aimed at sourcing prior art investigation through observations on patent applications by the research and technology communities through the Internet. The information collected from the public helps patent examiners determining if a patent application is for a new and inventive invention. This pilot experience was judged useful and time-saving in the context of UK patent examination.[3] In a similar vein, NGOs that oppose patenting in certain fields, such as biotechnology or information technology, have relied on similar systems to search prior art capable of destroying the novelty of patent applications.[4] In the specific field of cultural heritage, a resourceful initiative by the British Library, the Mechanical Curator, enables crowd-sourced classification of images, which in turn are offered for free reutilization to users.[5]

Crowd-sourcing can help gathering information that would otherwise be difficult or impossible to collect. In particular in the field of cultural artefacts, information necessary to right clearance can be complex and dispersed in various channels. This is notably the case with the information necessary to carry out diligent searches on works, such as: who is the author, when did the author die, to whom have the rights being transferred? The relevance of this information to ascertain the legal status—in-copyright, out-of-copyright, “orphan”—varies from jurisdiction to jurisdiction and for categories of works, depending on the copyright duration and on the laws governing orphan and out-of-print works. The search therefore cannot be carried out without specialised legal guidance.

EnDOW draws upon diluted and dispersed information on cultural artefacts with the aim of transforming it into a reliable and legally valid source to perform diligent searches on works in order to determine their copyright status. To this end, EnDOW applies the concept of crowd-sourcing to copyright search, building on the assumption that public participation may work well in the context of cultural heritage. Mass digitisation and access to 20th Century cultural heritage will benefit first and foremost the public at large and will foster unprecedented circulation and creation of cultural products. This is a great incentive for the public to collaborate and to make this happen. In fact, collaborative user-generated platforms have already proved a successful model for culture and information sharing as the Wikipedia experience shows. On the other hand, cultural institutions have a strong incentive to participate in a programme that reduces costs of clearing rights, enhances public participation, and eventually empowers sustainable use and management of the cultural heritage items contained in their collections.

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[1] Prpic, J. and Shukla, P. (2013) ‘The Theory of Crowd Capital’, IEEE Computer Society Press, Forthcoming. Available at SSRN: <http://ssrn.com/abstract=2193115>

[2] Noveck, B.S. (2006) “Peer to Patent: Collective Intelligence, Open Review, and Patent Reform’ Harvard Journal of Law & Technology 20/1.

[3] UKIPO 2012. Results of the Peer to Patent experiment are available at <http://www.ipo.gov.uk/p2p-report.pdf>, at 17 (accessed 24-09-14).

[4] Noveck 2006, supra n. 29.

[5] <https://www.flickr.com/photos/britishlibrary> (last accessed September 2014).