Open Access News

... The flow of public sector content and the maximisation of the potential of its value is being disrupted by both the resources necessary to manage copyright and, in particular, Orphan Works. Despite the recognised extent, impact and problem of Orphan Works, particularly for digitisation activities across the globe, there has been a lack of credible evidence to evaluate the scale of the problem across the public sector in the UK. The absence of such an evidence base means that it is nearly impossible to address this problem legislatively and/or through the implementation of suitable licensing schemes. It also means that the problem cannot be managed nor solutions sought to prevent the occurrence of these works in the future.

In recognition of the substantial obstacles created by Orphan Works across the public sector, as well as the lack of a statistically viable evidence base to underpin any potential solutions, the Collections Trust and the Strategic Content Alliance have been working together on a joint initiative to assess the impact of Orphan Works on the delivery of services to the public. The ‘In from the Cold’ project is the first research of its kind surveying the extent of Orphan Works across the UK’s public sector, drawing on international responses as well as qualitative data from over 80 UK-based public sector bodies. ...

The scale and impact of Orphan Works across the public sector confirms that the presence of Orphan Works is in essence locking up culture and other public sector content and preventing organisations from serving the public interest. Works of little and/or variable commercial value but high academic and cultural significance are languishing unused. Access to an immense amount of this material, essential for education and scholarship, is consequently badly constrained, whilst scarce public sector resources are being used up on complex and unreliable ‘due diligence’ compliance. Without any kind of UK or European Union-wide legal certainty, there will remain a major risk for all users of Orphan Works. The quantity of Orphan Works and their impact is only accelerating as content is being created and digitised without adherence to any single internationally recognised standard for capturing provenance information.

The data and anecdotal feedback suggests that many public sector organisations are themselves unsure as to the extent of the problem, and that staff awareness and understanding are often limited. There are also suggestions that often works are selected for digitisation based on the fact that they do not pose any copyright issues, thus creating a black hole of 20th century content. These issues stress the need for an informed and skilled public sector to deal with all the issues associated with copyright-related materials, the necessity for access to resources to deal with Orphan Works, and an informed and proportionate understanding of the nature of the risks associated with the use of these works.

It is crucial that policy makers recognise the problems that public sector bodies face in managing and providing public access online to a vast range of works in copyright (including Orphan Works), and create a suite of appropriate legislatively based solutions. Whether the answer is a UK or an international one, involving a change in practice and interpretation and/or a change in legislation, this is clearly a matter of urgency. Without these legal safeguards, the contribution of public sector content to a global digital landscape will continue to be severely curtailed and the levels of public resources to manage copyright will be unacceptable.