From British poet, historian, and Laboratorium commenter Gillian Spraggs comes this detailed discussion of the implementation of France’s new orphan books legislation. It is the best source I am aware of in the English language for a ground-level view of the French legislation in action. She wrote extraordinarily helpful analyses of the Google Books settlement for U.K. authors and she finds many of the same troubling features in the new French scheme.

In particular, it appears that the metadata and search interface to the database of putative orphans are both atrocious. Spraggs’s post details more than a dozen books by foreign authors that are not plausibly orphan works, but were or are in the database nonetheless. This, it will be recalled, was a significant problem with HathiTrust’s abortive Orphan Works Project. Every time an orphan works trial flunks its basic due diligence, it undercuts the case for orphan works reform; just as the criminal antics of Righthaven and Prenda Law undercut the case for copyright enforcement against individual downloaders.

Thanks for the heads-up, this is a great opportunity to practice my French reading skills. Can’t wait to compare this law to my own stillborn attempt, which taught me that creating an effective and fair law is very, very challenging.

Every time an orphan works trial flunks its basic due diligence, it undercuts the case for orphan works reform; just as the criminal antics of Righthaven and Prenda Law undercut the case for copyright enforcement against individual downloaders.

Au contraire, the unifying motif I see here is that neither due diligence (at a level approaching 100% accuracy, say greater than 99.9%) for orphan works, nor non-“antics” copyright enforcement against individual downloaders is economically feasible —- in both cases, mainly because of the scale of the problems, but secondarily because of the low probable return on investment.

The French law doesn’t pretend to be limited to “orphan” works. It’s an “Extended Collective Licensing” (ECL) law in which the default is to authorize digitization and commercial exploitation of all works which (1) were published at some time in some edition in book form in France (there are supposed to be some limits on years of publication, but these haven’t been honored), and (2) are not currently available in print in that edition in France.

Aside from any of the other problems including the violations of the Berne Convention, the French fiasco shows the problems that result from confusing the status of a work with the status of a particular edition in which that work is included. ReLIRE never seems to have contemplated the (increasingly common) situation in which an edition is out of print, but the work is available in some other edition or some completely different format.

Greetings from France, I’m part of the opposition to the ReLIRE Law, here, and peculiarly “in charge” of the actions in favor of the foreign artists with the Nitchevo Factory association.

I got a direct answer from the BnF on this very topic. They confirmed that the foreign artists “should not”, be included in the Register “for now” (quote).

This comes from a reservation that the Law made on this aspect. So, the Works appearing right now in the 1rst List of the ReLIRE Register are here by mistake.

BUT it’s only a temporary exclusion, alas. French-reading writers and ‘interested /concerned people’ may read my ‘forensics’ on this point here: http://www.nitchevo.net/Agency/Blog/Entrees/2013/4/30Undemi-pasenarrierepourleTankReLIRE-Droits_etrangers.html (English translation will follow as soon as I can manage it) And our information page in English is here: http://nitchevo.net/Agency/Actions.html

The Law is poorly written, the Register full of mistakes, and the situation very confusing. But the opposition is strong, and very unyielding.

I’m discussing all this with Edward right now. I hope that it will help to precise the outlines of this problem, but feel free to contact us/me if need be.

Cheers. LS/Writer trapped into ReLIRE too. :-)

The UK is currently enacting its own unique variations on copyright . Exactly what UK the new laws will mean in practice is still very unclear.

I asked the Ipkat, Eleonora Rosati this hypothetical:

“What would be the situation when a UK site makes a commercial global web use of a ‘orphan’ photograph, that turns out to be owned by say the New York Times - whose law would apply?”

her response was:

Although this Kat believes that the legal scenario is still (sadly and rather confusingly) quite unsettled in this respect, from an EU perspective some hints might be found in the decision of the Court of Justice of the European Union (CJEU) in Case C-173/11 Sportradar. Despite this being a database case, the conclusions of the Court might well apply to copyright cases, as was argued in this Katpost (see some interesting discussion also here).

http://ipkitten.blogspot.com.au/2013/05/the-enterprise-and-regulatory-reform.html

What do you think the US attitude might be?

“The Law is poorly written, the Register full of mistakes, and the situation very confusing.”

God that is familiar!

It feels like EU/UK Copyright is increasingly being handled at government and quasi government levels, by people who do not understand , law, syntax, governance and the careful drafting of Acts of parliament at all.