An archivist wants to share an image from their archives online. What are the implications of copyright law? The standard answer: either the image is out of copyright and can be used freely, or it is in copyright and can be used only if the rights are held by the archive or with the permission of the rights holder.
When it comes to archives, copyright law doesn’t fit into this neat binary structure. Things are much, much more complicated. Why? Copyright law has taken shape over hundreds of years, and its implications in the real world only emerge via case law. The duration of copyright, who owns it, and what others can do with the material; varies by format and many other factors. If this is new to you, I recommend Tim Padfield’s (2015) book “Copyright for Archivists and Record Managers.”
This complexity means our archivist may be trying to impose the in/out structure on something that is far messier. They may not even be sure whether the material they wish to use is in or out of copyright. At the heart of the difficulties are the orphan works…
What do we mean by Orphan Works?
The term “orphan” is rather slippery: sometimes it is used to mean the rights holder is unknown, sometimes just that they are untraceable. Either way, the material is in legal limbo. The archivist needs permission in order to use it, but cannot get that permission because they cannot trace the holder – even if the archives service is able to pay for that permission. So the material remains locked away, unused, and increasingly, in a digital world, invisible.
Orphan works have been a massive headache for Special Collections at the University of Bradford. Our collections are mostly archival, mostly modern, and mostly third-party copyright. Our policy of using only copyright material for which we could definitely obtain permission became increasingly unworkable, frustrating for staff and users alike, stopping us achieving our mission and rendering our collections dumb.
In 2009, we reached a tipping point - we had to find a solution. The driver was the PaxCat Project, funded by the National Cataloguing Grants Scheme, which catalogued archives of peace campaigns (1980s peace camps, 1940s Gandhians in India, 1950s and 1960s nuclear disarmers). We were keen to exploit the potential of Web 2.0 (social media) to share the powerful images and stories we had discovered. However, the material was almost all third party orphan works and there was no funding even to attempt to obtain copyright clearance.
Fortunately, others had the same problem. The heritage/information sector was beginning to explore the scale of the orphan problem. We found guidance and support from many sources and began to implement a risk managed approach. This has worked very well for our service, allowing us to raise awareness of our collections without harming copyright holders or causing problems for the University. Witness for example our 100 Objects exhibition, probably the most worthwhile outreach activity we have ever done. Its internal impact was huge and continues to this day e.g. colleagues use it as a resource for researching an anniversary next year.
What are the Risks with Orphan works?
So what is the risk we are managing? The possibility of legal action against the University. This is clearly a serious matter and people are right to be cautious.
However, when it comes to copyright, no use is risk-free. The complex situation outlined above means that it is difficult to be certain about what is in or out of copyright, and in particular who owns the rights. I have experienced a number of donations where the owner of the physical archives assumed they held the rights – but it emerged that the rights had been left separately and were held by another branch of the family. Awkward! Not to mention that the law changes and material can move in or out of copyright.
Refusing to use orphan works is also risky. You risk tying up limited staff resources in fruitless research into rights holders, and missing out on opportunities to bring archives and users together. I know of archive services forbidden to use orphan letters from the First World War, which seriously restricts how those services engage with users via the War anniversaries.
Please note, I am not advocating throwing caution to the winds or disobeying the law. I am extremely cautious when working with orphan works. If I am unsure or in any way concerned, I do not use them, however appealing they may be.
A Risk managed approach
So what does a risk managed approach require?
- Staff Training. To make good decisions, staff need to know the law and the archives very well, and also keep up to date with legal changes. Some investment in training (e.g. ARA courses) and resources (e.g. Padfield’s books) is essential.
- Senior management agreement. This has to be a policy accepted at a high level in the organisation. Naturally there is concern about possible litigation (our experience, above, may be reassuring, not to mention the points about balancing risks).
- Effective policies and procedures. Such as a robust take-down policy clearly explained on the relevant site.
The best way to start managing risk is to use a calculator such as the Web 2 Rights OER Project Risk Calculator. This is useful as it quantifies risk and helps demonstrate how using some orphans is a very low risk activity. We at Bradford would only use orphans that score in the green zone i.e. low risk. Other organisations may have a higher or lower appetite for risk.
As the calculator shows, money is the key to managing risk. Copyright is a property right, allowing the rights holder to profit from their work or acquisition. The archivist needs to consider the creation of the item they wish to use and the likely motivation of whoever is likely to hold the rights. Press photographs are high risk, created as to earn someone’s livelihood and generating income for rights holders such as picture libraries. Even if they appear to be orphans, it is likely that these rights have gone to someone who will pursue them. Low risk materials include our campaign ephemera, created anonymously for a protest by a now extinct organisation, without any thought of financial gain.
An ongoing issue
Risk management works well for our service, but the situation remains unsatisfactory. Access to orphans depends on decisions made by individual institutions who are forced either to take risks with the law or to risk their collections becoming irrelevant. We also see a “reverse beauty contest”: poor quality, amateur, sketchy etc images are much more likely to appear online than high quality professional commercial work.
What about the new orphan works licence? This operates at the level of individual items and thus offers a way out of limbo for “hero” objects, star items which merit this investment. It does not alas address the wider issue: services are housing millions of items which cannot legally be made available online.
Six years on, the position outlined by Naomi Korn (2009) in her seminal report remains all too true:
“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.”
Article based on a presentation delivered at a digitisation conference at the National Archives, 4 November 2015. Copyright: Alison Cullingford.
Disclaimer: This is a personal perspective encouraging fellow professionals and their managers to explore a risk managed approach to archival copyright. It does not necessarily represent the views of TownsWeb Archiving or of the University of Bradford.
References to published documents
Korn, Naomi (2009) In From the Cold: an assessment of the scope of ‘Orphan Works’ and its impact on the delivery of services to the public. Collections Trust. http://www.webarchive.org.uk/wayback/archive/20140615221324/http://www.jisc.ac.uk/media/documents/publications/infromthecoldv1.pdf
Padfield, Tim (2015) Copyright for Archivists and Records Managers. 5th edition. Facet Publishing.