DIGITAL BRITAIN & ORPHAN WORKS 30 th September 2009 Nick Poole, Chief Executive, Collections Trust

“ The Digital revolution lies at the heart of success for Britain in this new Economy. Investing in the digital future is essential to our industrial strategy. Only by embracing a Digital Britain and taking a lead in the global Digital Economy can we maintain our competitiveness as one of the worlds leading economic and industrial powers in the years to come.” Rt Hon Gordon Brown MP Prime Minister DIGITAL BRITAIN

Building Britain’s Future (BBF) is the Government’s plan to work with the British people to respond to the economic downturn and together build a stronger, fairer and more prosperous country. A new Economy Investing in Health Investing in Young People Investing in Housing A Green Economy BUILDING BRITAIN’S FUTURE

Building Britain’s Future (BBF) is the Government’s plan to work with the British people to respond to the economic downturn and together build a stronger, fairer and more prosperous country.

A new Economy

Investing in Health

Investing in Young People

Investing in Housing

A Green Economy

Lord Stephen Carter appointed to Chair review First joint action between Departments for Culture (DCMS) and Trade (BIS) Interim Report Public & Industry Consultation Final Report Implementation Plan THE PROCESS

Lord Stephen Carter appointed to Chair review

First joint action between Departments for Culture (DCMS) and Trade (BIS)

Interim Report

Public & Industry Consultation

Final Report

Implementation Plan

THE REPORT A three-year National Plan to improve Digital Participation Universal Access to today's broadband services by 2012 Next Generation fund for investment in tomorrow's broadband services Digital radio upgrade by the end of 2015 mobile spectrum liberalisation, enhancing 3G coverage Robust legal and regulatory framework to combat Digital Piracy Support for public service content partnerships A revised digital remit for Channel 4

A three-year National Plan to improve Digital Participation

Universal Access to today's broadband services by 2012

Next Generation fund for investment in tomorrow's broadband services

Digital radio upgrade by the end of 2015

mobile spectrum liberalisation, enhancing 3G coverage

Robust legal and regulatory framework to combat Digital Piracy

Support for public service content partnerships

A revised digital remit for Channel 4

IN FROM THE COLD First comprehensive research into scale of Orphan Works in public collections Average 5-10% of Collections are orphans British Library estimate 40% of their Archive as orphans BBC estimate 1m hours of broadcast footage as orphans Between 13-50m works 89% of organisations are affected by Orphan Works A significant constraint on Digital programmes http://www.collectionslink.org.uk

First comprehensive research into scale of Orphan Works in public collections

Average 5-10% of Collections are orphans

British Library estimate 40% of their Archive as orphans

BBC estimate 1m hours of broadcast footage as orphans

Between 13-50m works

89% of organisations are affected by Orphan Works

A significant constraint on Digital programmes

http://www.collectionslink.org.uk

DIGITAL BRITAIN PROVISIONS ON ORPHAN WORKS Recognises Orphan Works as a significant barrier to public access Acknowledging the work on ‘Voluntary’ schemes “ In order to pave the way for a more effective framework to deal with Orphan Works, the Government proposes to introduce legislation to enable commercial schemes for dealing with Orphan Works to be set up on a regulated basis .” Anybody wishing to use Orphan Works will need to apply to the Government for permission. Permission will only be granted where the applicant can demonstrate: Appropriate procedures in place for diligent search and Adequate provision for reimbursing rightsholders in the event of a legitimate claim

Recognises Orphan Works as a significant barrier to public access

Acknowledging the work on ‘Voluntary’ schemes

“ In order to pave the way for a more effective framework to deal with Orphan Works, the Government proposes to introduce legislation to enable commercial schemes for dealing with Orphan Works to be set up on a regulated basis .”

Anybody wishing to use Orphan Works will need to apply to the Government for permission. Permission will only be granted where the applicant can demonstrate:

Appropriate procedures in place for diligent search and

Adequate provision for reimbursing rightsholders in the event of a legitimate claim

DIGITAL BRITAIN PROVISIONS ON ORPHAN WORKS Proposal to ‘explore the extent to which powers to grant rights over Orphan Works could be exercised by Collecting Societies or equivalent bodies through extended collective licensing arrangements ’. Appears to suggest two approaches: Industry-led solutions based on coalitions of cultural institutions applying for appropriate permissions from the Government and; Sanctioned solutions based on commercial schemes established by Collecting Societies.

Proposal to ‘explore the extent to which powers to grant rights over Orphan Works could be exercised by Collecting Societies or equivalent bodies through extended collective licensing arrangements ’.

Appears to suggest two approaches:

Industry-led solutions based on coalitions of cultural institutions applying for appropriate permissions from the Government and;

Sanctioned solutions based on commercial schemes established by Collecting Societies.

SOME CHALLENGES Appears to open up the possibility of commercial use of Orphan Works where revenues are used to provide surety against future claimants Very hard to see how the scheme would operate in practice Possibility of paying for uses of works that are not currently being paid for There is relatively little legislative weight behind diligent search There is no standard definition of an Orphan Work The proposals would require primary legislation Any proposals would need the support of the Commission

Appears to open up the possibility of commercial use of Orphan Works where revenues are used to provide surety against future claimants

Very hard to see how the scheme would operate in practice

Possibility of paying for uses of works that are not currently being paid for

There is relatively little legislative weight behind diligent search

There is no standard definition of an Orphan Work

The proposals would require primary legislation

Any proposals would need the support of the Commission

WHAT HAPPENS NEXT: UK IPO CONSULTATION Looking at 3 options: An exception to Copyright An extension to current UK rules governing unclaimed/ownerless property (bona vacantia) Adopting the US model of limited liability (legally unsatisfactory) Exceptions bear the risk of coming into conflict with the Directive provisions on commercial exploitation Need to preserve compatibility with the Berne Convention Highly unlikely anything will happen before 2011

Looking at 3 options:

An exception to Copyright

An extension to current UK rules governing unclaimed/ownerless property (bona vacantia)

Adopting the US model of limited liability (legally unsatisfactory)

Exceptions bear the risk of coming into conflict with the Directive provisions on commercial exploitation

Need to preserve compatibility with the Berne Convention

Highly unlikely anything will happen before 2011