News

Report: Only the free accessibility of hierarchized sources will make Diligent Search workable

The orphan work exception has the purpose of facilitating the circulation of works whose authors are not known or cannot be located, to the benefit of cultural institutions, and society at large. Because the different approaches embraced by the European Member States to the recognition of the orphan work status were recognized a major obstacle, the Directive on Orphan Works of 2012 was issued with the idea of harmonising this exception to copyright law across the EU.

The study conducted by EnDOW researchers in 20 European countries (Austria, Belgium, Cyprus, Czech Republic, Estonia, France, Germany, Greece, Ireland, Italy, Lithuania, Luxembourg, the Netherlands, Poland, Portugal, Romania, Slovakia, Spain, Sweden, and the United Kingdom) shows that all the examined countries have implemented the Directive nearly literally as to the beneficiary institutions, the categories of works and kinds of activities to which the exception applies.

At the same time, while the Directive mandates a Diligent Search of right-holders before any work can qualify as an orphan work, it gives to the Member States the choice about what sources should be consulted in order to meet the requirement of a Diligent Search. According to the study, all countries under scrutiny have issued or are in the process of issuing lists of sources to be consulted. However, several discrepancies emerge in regard to the appropriate sources to carry out the Diligent Search, and the ways to document it. Most of all, the absence of hierarchical validity of the appropriate sources for Diligent Search leave the clearing of rights uncertain.

In addition, the study warns that Diligent Search not only depends on the number of sources that need to be consulted, but also on their accessibility. In particular, the number of national sources shown by the study spans from a minimum of 10 (Cyprus) to a maximum of 357 (Italy), with a total of 1,768 sources for the 20 countries. As already revealed by the Report on “Requirements for Diligent Search in the United Kingdom, the Netherlands, and Italy”, this study confirms and provides further evidence that a significant share of the sources to be consulted in order to carry out a Diligent Search is not freely accessible online. Specifically, the analysis of the sources in 20 countries reveals that the ratio of freely online accessible sources varies significantly among Member States, ranging from the 91% of Lithuania to the 36% of Poland, with an average accessibility of 63%. Moreover, some of the sources identified as “appropriate” to carry out a Diligent Search can only be consulted offline (namely on-site), and this may make the Diligent Search more resource-intensive or simply unworkable.

In conclusion, according to the study, it is advisable that each Member State would provide for a detailed non-exhaustive list of sources and the definition of internal hierarchies among the listed sources, with a diversification between compulsory and optional sources, depending on their relevance and accessibility. Moreover, the study suggests to the legislature at EU and national level to consider the introduction of the principle according to which a search must be considered diligent if all relevant freely accessible online sources have been consulted.

Report 2 and its Annexes are available from the Resource page.

Symposium: New Approaches to the Orphan Works Problem – Programme

New Approaches to the Orphan Works Problem

New Approaches to the Orphan Works Problem: Technology, Regulation, Practices

International Symposium

23 June 2017, Executive Business Centre, Bournemouth University

Back in 2006, the US Copyright Office identified the orphan works problem as one of the major obstacles to “productive and beneficial uses” of works that have been created in the last century. These include most of our recent cultural heritage as embodied in books, journals, photographs, films, sound recordings, visual arts: a wealth of published and unpublished material that is preserved by memory institutions across the world.

The swedish book corner, by Ami Photography, 2014

In the last decade, the orphan works problem has been at the top of the cultural agenda of governments and legislators alike. Yet, despite major legislative initiatives (above all the EU Orphan Works Directive of 2012) and positive judicial treatment (the finding of fair use in favour of HathiTrust and Google Books in the US), the problem is far from being solved. The requirement of “diligent search”, as contained in orphan works legislation, is a major practical and financial hurdle. The scope of the permitted uses of orphan works under the fair use defence is uncertain. Briefly, making use of orphan works, engaging in productive and beneficial use of our recent cultural heritage, is still a costly, complex and risky activity.

The EnDOW project was launched two years ago with the aim of researching the legal instruments of “diligent search” in the EU, to turn these into an online platform that allows crowdsourced diligent search processes in order to investigate the potential application and challenges of such a platform.

This Symposium will bring together the findings of EnDOW researchers and those of fellow scholars around the world, in order to explore innovative approaches to the problem of orphan works. Technology, legal regulation and best practices will be thoroughly discussed and tested by the participants.

Programme

10.00-10.30 Registration

10.30-13.00 – Technology, law and diligent search: the EnDOW project and beyond

  • Maurizio Borghi and Marcella Favale (CIPPM, Bournemouth University): Orphan works in Europe and the EnDOW project: where we are and where do we go from here
  • Lillà Montagnani and Aura Bertoni (ASK, Bocconi University, Milan): The challenge of diligent search: a survey on 20 EU Member States
  • Kris Erickson (CREATe, University of Glasgow): Current practices in right clearance for orphan works in Europe
  • Victoria Stobo (CREATe, University of Glasgow): ’I should like you to see them some time’: an empirical study of copyright clearance costs in the digitisation of Edwin Morgan’s scrapbooks
  • Leontien Bout (Eye Institute, the Netherlands) Dealing with orphan works: a film archive’s perspective
  • Maarten Zeinstra (Kennisland): Crowdsourcing right clearance for Orphan works, the EnDOW Platform

13.00-14.00 Lunch

14.00-17.00 – Regulatory approaches and practices

  • Annabelle Shaw (British Film Institute): The BFI Digitisation Project
  • Meredith Jacob (American University) Best Practices in Fair Use of Collections Containing Orphan Works
  • Dan Hunter (Swinburne University of Technology): Blockchains, orphan works and the public domain
  • David Hansen (Duke University): Orphan Works in Practice: Successes and Challenges for US Cultural Heritage Institutions
  • Franck Macrez (CEIPI, University of Strasbourg): The French case: from orphan to out-of-print books (and vice versa)
  • Peter Jaszi  (American University): Orphans in America: A history of failure in public policy

17.00-17.30 Concluding remarks

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Venue and accommodation

The Executive Business Centre is located in Bournemouth, at 5 minutes walk from the train and bus station. When leaving the station, head to “Town Centre” and “Seafront”. You will see the building on your left. (see directions here).

Trains from London leave at every hour (.05) and half-past hour (.35) from Waterloo Station, and take about 2 hours (direction: Weymouth or Poole). (See train times and tickets here or here).

If you arrive by car, please ask the organizers to book a parking space for you at the Executive Business Centre.

The lovely seaside resort of Bournemouth offers a broad variety of accommodation. The following are in close range from the Executive Business Centre:

The Miramar Hotel

The Green House Hotel

Ramada Encore Hotel

Best Western Hotel Royale

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The event is free to attend, however spaces are limited and registration is required. Please reserve your place via Eventbrite by clicking here:

 

 

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For more details and for information about travel and accommodation please email Maurizio Borghi <mborghi@bournemouth.ac.uk> or Marcella Favale <mfavale@bournemouth.ac.uk>

Launch of the ‘Digitising the Edwin Morgan Scrapbooks’ Project

CREATe organized two events on Friday 20th January 2017 to launch the Digitising the Edwin Morgan Scrapbooks Project: a free training event about digitising photographs and the launch of the web resource. The collection of Edwin Morgan Scrapbooks – a unique and culturally significant mixed-media collection of artistic work from the early to mid-twentieth century – is one of the case studies selected by EnDOW researchers Kris Erickson and Victoria Stobo will carry out right clearance simulations.

Read more on CREATe blog…

EnDOW Progress Meeting in Glasgow

The third progress meeting of EnDOW was organized by CREATe at the University of Glasgow, on 19-20 January 2017. The agenda covered, among other things, the consolidation of the analysis of diligent search in 20 countries and the final draft of the flowcharts of operations for the EnDOW digital platform, which will be in operation in the next months and will be officially presented in June.

The minutes of the meeting are available here.

The EnDOW team at the meeting in Glasgow: all wearing the official Tartan of CREATe 

“With Enough Eyeballs All Searches Are Diligent”. Article by EnDOW researchers

EnDOW researchers Kris Erickson, Marcella Favale and Maurizio Borghi have published “With Enough Eyeballs All Searches Are Diligent: Mobilizing the Crowd in Copyright Clearance for Mass Digitization” in the Chicago-Kent Journal of Intellectual Property (vol. 16, issue 1, 2016).

The article presents the conceptual framework that is at the basis of EnDOW and discusses the various dimensions of crowdsourcing as applied to diligent search for orphan works. The abstract of the article reads:

Digitization of 20th Century cultural heritage is severely restricted due to the real or potential subsistence of copyright and related rights. Under the laws on orphan works introduced in many countries, items whose copyright status is uncertain may possibly be lawfully digitized, on condition that a “diligent search” of the copyright owners has been performed. However, carrying out diligent searches on large collections is a lengthy and expensive process, which may discourage institutional users from embarking on large-scale digitization. While the problem of performing diligent searches has been so far approached in a “centralized” manner by individual institutions, the article suggests a de-centralized approach based on crowdsourcing certain phases of the diligent search process. The proposed solution may alleviate the problem of the high costs of diligent search, and may ultimately enable cultural heritage institutions to take full advantage of the orphan works legislation. Suitability of the crowdsourcing solution to the cultural heritage sector is discussed and challenges to implementation are identified.

The article can be downloaded here.

EnDOW at the EUIPO Meeting with National Authorities for Orphan Works

The preliminary results of the EnDOW survey on the diligent search requirement across 20 EU member states have been presented and discussed in a Meeting organized by the European Intellectual Property Office with the Competent National Authorities for the Orphan Works Directive and the Orphan Works Database. The meeting took place on 7 December 2016 in the premises of the EUIPO in Alicante, Spain.

Risultati immagini per euipo alicante

 

The purpose of the meeting was to discuss the collaboration between EUIPO and competent national authorities aimed at promoting the use of the Orphan works Database, as well as the practical functioning of the Directive 2012/28/EU and the issue of the diligent searches. The European Commission and representatives of the competent national authorities of 22 Member States attended the meeting.

In his presentation, EnDOW’s project leader Maurizio Borghi discussed the key findings of the survey conducted by the EnDOW researchers on 20 member states. The survey collected evidence on the implementation of the Orphan Works Directive (including the adoption of soft law instruments), on the availability of alternative instruments for making use of orphan or out of print works, and on the sources to consult in order to perform a legally valid diligent search. The survey allowed EnDOW researchers to collect a database of around 1,400 sources across 20 member states. Interestingly – or rather worryingly – a significant proportion of those sources is not available for free consultation online, but their access is restricted in some form.

The presentation can be downloaded here.

The Report with the findings of the EnDOW survey will be soon published on the Resources page.

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.