1

Within the cultural heritage sector, film archives are particularly impacted by the problem of out-of-commerce works. Within Europe, there are approximately 1.03 million hours of film material in cultural heritage institutions including film archives. [1] Film archives have estimated that 76% of the film works in their collections are under copyright, and that about 60% of the feature films under copyright are presumably orphan works or out-of-commerce. [2] This means that there are hundreds of thousands of hours of films held by these archives, that have not been digitised or made available to the public.

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The introduction of the EU’s Copyright in the Digital Single Market Directive 2019 (“CDSM”), [3] brings the legislative change needed for CHIs to make use of their out-of-commerce works and is a change that scholars have strongly advocated for. [4] Article 8 CDSM addresses the issue of out-of-commerce works, enabling cultural heritage institutions (“CHIs”) to provide public access to these copyright works in certain circumstances.  Article 8 enables CHIs to obtain licences from collective management organisations (“CMOs”), avoiding the need to negotiate with each individual rightholder. Article 8(2) expands this and enables CHIs to make out-of-commerce works available for non-commercial purposes without seeking the rightholder’s permission where there is no representative CMO. However, copyright reform alone is insufficient, unless it is accompanied by working practices and knowledge within these institutions that can incorporate this legal reform. This research addresses the problem of out-of-commerce works within the context of film archives and puts forward a theoretical framework.

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This article streams from ethnographic research conducted in three film archives, prior to the national implementations of the CDSM. This then led to the formulation of a theoretical framework to understand the copyright regime of archival practices, which articulates the ways in which copyright shapes archival practice and can act as a barrier to certain activities. This copyright regime is the basis for this article and is conceptualised as a discursive system that brings together the different elements of archiving practices: meanings, materials, and competences. Three sub-regimes are proposed: the Oppressive regime; the Pragmatic Compliance regime; the Active Agency regime.

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The value in understanding the existing copyright regime of archival practices is in formulating a theoretical framework for exploring and understanding the diverse copyright practices present and performed in the film archives. This enables a consideration of the practical likelihood of film archives being able to incorporate Article 8 into their working practices, drawing on the empirical data gathered. Furthermore, it provides detailed evidence to policymakers and legislators regarding the barriers to successful incorporation into existing archival practices. Practice theory shapes the focus of the theoretical framework to be on the film archivists and their practices as well as the film archive itself as an organisation. It also highlights any self-regulation that is carried out to maintain adherence to these meanings. [5]

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This article will discuss the following: (i) a contextual overview of the relevant film archives; (ii) an overview of the copyright regime of archival practices; (iii) the Oppressive sub-regime found in Archive 1; (iv) the Pragmatic Compliance sub-regime found in Archive 2; and (v) the Active Agency sub-regime found in Archive 3.

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Ethnographic research was conducted at three film archives, two in the UK (when the UK was still in the EU) and one in the Netherlands. In total, just under 6 weeks was spent across the three film archives. The length of time at each archive varied according to what the film archive was able to accommodate logistically. Below is a table that places the archives in their wider contexts. The archives are anonymised with a number.

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None of the film archives had a specific, formal copyright or intellectual property policy. At all three, staff had someone to ask specific copyright questions to or with, but how this was coordinated varied. The general copyright culture in each of the film archives was observed to be collaborative and supportive, with no shaming of staff or practices being observed or commented on by participants.

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Individuals at each of the three archives were positive about the concept of out-of-commerce works, viewing it as potentially very beneficial for film archives. It was commented by many of the individuals that they believe there are many out-of-commerce works in the archives; and that the concept is well aligned with the desire to make these films publicly available. To illustrate, a participant commented that they believe that there, “would be loads of out-of-commerce films in the archive; and it could maybe help raise the archive’s profile if they were used.” It was also commented that the out-of-commerce works, “could be used for anything if it works well… [it could be] very useful for us, as a large chunk of our remit is making stuff available for educational and public access.”

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A meaning of making films available for public access was strongly intertwined with the narrative of out-of-commerce works, and it was observed that they were viewed as potentially very beneficial for enabling public access. It was observed from the list of films in their collections and the discussions generally that many of the films appear to be out-of-commerce, as they are thought not to be available anywhere else, according to the curators. Likewise, another participant noted that their organisation is hopeful that the out-of-commerce works scheme could be “very useful”, even more so if “it allows more public engagement and for us to be able to give more access; and raise more money, as we are a charity.”

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Another participant noted that out-of-commerce works could potentially be a way of “supporting the archive” financially and of “building awareness of the archive”. They hope it will help with future commercial sustainability for the archive, which is “particularly important” for film archives that are charities. This is an interesting comment given that out-of-commerce works cannot be commercialised, which this participant understood, and suggests that the film archives anticipate that making these works available to the public will attract more viewers. This in turn could attract more commercial interest in the archive’s collection. This notion could offer reassurance to film archives wishing to prioritise commercial activities to support their limited funding, and thus do not view making available out-of-commerce works as a financially viable activity. If this were viewed as attracting additional revenue over a longer period of time, this could be a more attractive option.

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Practice theory is a theoretical framework employed by a variety of disciplines, that focus on the practice of a task. This article utilises the understanding of practices as being made up of materials, meanings, and competences, as set out by Shove et al:

materials – including things, technologies, tangible physical entities, and the stuff of which objects are made; competences – which encompasses skill, know-how and technique; and meanings – in which we include symbolic meanings, ideas and aspirations. [6]

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Links are made between the elements that constitute a practice, as well as between the multiple practices that individual elements form parts of. [7] Shove et al. also introduce the concept of the “proto-practice”, [8] meaning a potential new practice in which the links between the meanings, materials and competences has not yet taken place. That is, a reproduced practice has not yet been formed from these constituent parts. New practices “exploit” the connections made by practices that already exist. [9] In addition, these new interactions are “transformative” in that the materials, competences and meanings are “mutually shaping” and impact on one another. [10] Film archives making out-of-commerce works available can be viewed as a proto-practice: as there is a desire from the film archives to make these works available; there are many out-of-commerce works in the film collections and the materials to digitise them and place them online; and there are individuals with specialist knowledge concerning copyright law and out-of-commerce works.

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In this sense, the needed constituent parts to form a practice of making these works available to the public are present. However, it is not as simple as willing the practice into being.  [11] Practices need to recruit carriers to continue, [12] consequently there need to be individuals who are personally interested and committed to performing the practice, and engaging others in doing the same. From the ethnographic research, it is clear that there are individuals in the film archives who are keen to make these works available to the public.

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Of crucial importance is how the new practice interacts with existing practices. If a new practice demands too much time that is allocated for existing practices or uses too many resources currently allocated to other practices, it is unlikely to be taken up by many practitioners. There are demands on time, resources, and staff at the archives, with significant backlogs of processing, cataloguing films and tasks. For this reason, the new practice of making out-of-commerce works available needs to fit within the current practices and demands, or it will not be performed.

15

The copyright regime of archival practices set out in this article considers how materials, meanings, and competences come together to form an individual practice; and how these individual practices come together to create a holistic network or web of overlapping practices and attitudes, which shapes decision-making and daily activities. This network of multiple or overlapping practices forms what is referred to in this article as a regime of practices.

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“Meanings” is being used to mean the spoken, written, unwritten, explicit, and implied narratives that are present within the film archives. For example, copyright compliance and a desire to provide public access to the films are meanings evident in the ethnographic study. Materials are the objects that are involved in the practice. In this research, examples of materials include the films themselves, policy documents, and donor or deposit agreements. Competences refers to the technical skills, knowledge, and abilities of the individuals within the archive, such as knowledge of copyright law, and film restoration skills. It was evident in the ethnographic research that the competences, materials, and meanings are interwoven, and the existing archival practices rely on each constituent part.

17

Within the copyright regime proposed here, three distinct sub-regimes were apparent: the copyright as “Oppressive” regime; “Pragmatic Compliance” to copyright; and “Active Agency”. These three distinct sub-regimes could be thought of sitting on a scale of strong copyright compliance motivated by copyright fear, to active resistance to copyright on the other end.

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Each of the three archives within this research had an institutional approach that adhered to one of these regimes. Not all individuals within the archive adhered fully to the sub-regime of the archive to extent, but the overall adherence to the archive’s institutional copyright regime was evident. This is likely the result of the power dynamics and dominant meanings in each film archive. The staff in the archives were keen to adhere to what was perceived as proper or correct legal compliance, including concern for rightholders and avoiding reputational harm.

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The table below sets out the copyright sub-regimes found in the film archives; a comparative table is provided for ease of analysis. [13]

20

Within the meanings identified in the copyright sub–regimes of archival practice, there are both dominant meanings and subordinate meanings present. The term “dominant meanings” refers to what “should” or “ought to be” done: the meanings that set standards of best practice. “Subordinate meanings” are meanings that are exhibited by some individuals but are not the meaning held at the institutional level across the archive. It is important to acknowledge the existence of these subordinate meanings as it is an over-simplification to state that all individuals within the film archives adhere to the organisational culture and dominant meanings of the archives.

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For example, in the Pragmatic Compliance regime, there is a dominant meaning present that legal compliance and copyright compliance should be adhered to. In most of the observations and interviews, this appeared to be followed. However, in other team meetings it was observed that some legal compliance was limited, either because it had been “fudged”, or because separate teams had control over supervising their own legal compliance. Therefore, what was observed to be happening in practice was a dominant meaning of general (but not complete) legal compliance, and a meaning of hesitancy around these areas of limited legal compliance.

22

In the “Oppressive” copyright regime of archival practices, copyright is experienced as oppressive and restrictive on other activities. Strict legal compliance was prioritised over providing public access. This shaped archiving through the prohibition of any archival activities that could infringe copyright, for example reusing someone’s film or making it available online. Copyright concerns had an overt effect on the choice of films made available on the archive’s website, for filmmakers and students to reuse, and for commercial licensing. In this sense, copyright has a core orchestrating impact on wider archival activities.

23

Copyright orchestrates the archival practices considerably. Only the films with a clear and known copyright status were allowed to be reused. Also, copyright compliance led to a strong copyright fear within the regime. This in turn culminated in a practice of always re-seeking rightholder permission when access or reuse is requested by a third party, to avoid reputational harm. This practice limited the available films for reuse and public access.

24

It was accepted by the staff that the archive’s desire to provide public access to material must be superseded by copyright concerns. This is a result of the fact that over-compliance is preferable to under-compliance regarding copyright, and as such there may be concern about using out-of-commerce works in case they are actually in commerce or the rightholder objects.

47

In the “Pragmatic Compliance” copyright regime of practice, copyright is experienced as restrictive on archival activities, but more a logistical barrier than oppressive. Overall, legal compliance is adhered to. This shaped archiving through the avoidance of archival activities that could infringe copyright, for example reusing someone’s film or making it available online. Copyright concerns had an overt effect on the choice of films made available on their website, for filmmakers and students to reuse, and for commercial licensing. In this sense, copyright has a core orchestrating impact on wider archival activities. However, this regime differs to the one discussed above in that there is not an absolute prohibition on activities with an unclear copyright status, as some staff members are more willing to engage with them anyway.

48

Films with a clear and known copyright status were preferred for reuse, and some film titles are viewed as not able to be utilised due to copyright concerns. As was noted in the Oppressive regime, there is a practice of avoiding situations deemed too ‘risky’ from a copyright perspective. In the Pragmatic Compliance sub-regime, this presented more through a meaning of hesitancy around limited legal compliance, than a full prohibition. It was accepted by staff at this archive that copyright compliance is important, but there is not the same belief that over-compliance is better than under-compliance. There is hesitancy about legal compliance that is limited, however. It was also an accepted truth that the archive’s desire to provide public access to material must be superseded by copyright concerns in some instances.

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The archive has been a user of the EU Orphan Works Scheme (prior to the UK leaving the EU) and is able to undertake detailed and lengthy diligence to track down rightholders; demonstrating the high level of legal expertise of a small number of individuals at the archive.

66

In the “Active Agency” copyright regime of archival practices, copyright is experienced as restrictive to archival activities, but not oppressive. There is legal and copyright compliance to the extent that it is deemed necessary, and there is some active departure from copyright. Crucially, legal compliance is adhered to the extent deemed necessary and compatible with its public access goals. This departure is based on professional judgement of the archivists. This shaped archiving through the understanding that public access to films is of the utmost importance and that copyright law offers the archive opportunities to make use of their collection, as well as placing restrictions on its use. Whilst individual wariness of copyright was still present and was seen to restrict some individual curatorial activities, there was a wider institutional acceptance that there can be some resistance to copyright.

67

Some films with an unclear copyright status or no rightholder permission could not be made available to the public, but many films are made available, even without express consent. Only the films with a clear and known copyright status were allowed to be reused. Within the Active Agency regime, it was accepted by all individuals involved in the research that copyright compliance is important, but that this compliance must be balanced with professional judgment and with the view to providing public access.

92

For Article 8 to be beneficial to film archives in providing public access to out-of-commerce works, understanding the practices of copyright is crucial, as their current response to copyright is a likely indicator of the success of future copyright provisions. A theorical framework, based on empirical research, enables us to understand potential barriers to incorporation of legal reform, and to adequately address these barriers. Furthermore, it provides detailed evidence to policymakers and legislators regarding the barriers to successful incorporation into existing archival practices.

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This article proposes a copyright regime of archival practice. The different sub-regimes of copyright in each archive establish how the various elements of archiving come together, and the meanings of copyright and legal incorporation. This contributes a theoretical framework for the understanding of how copyright shapes archival practices and decision-making. The three copyright sub-regimes of archival practice are: an Oppressive Regime; Pragmatic Compliance regime; and Active Agency regime. This article applies the copyright regime of archival practices to out-of-commerce works. In doing so, it examines how existing practices are likely to face barriers in the introduction of a new proto-practice of making out-of-commerce works available.

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It seems likely that the archives that adhere to an “Active Agency” copyright regime, with a legal specialist that is knowledgeable and confident about copyright, are the most likely to utilise Article 8. This is due to this copyright sub-regime of displaying less copyright wariness and fear. It is also due to the fact that this regime involves copyright compliance balanced with professional judgement and departure from copyright when it is deemed too restrictive or too onerous, such as the departure from the Orphan Works Directive diligent search requirements.

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It is suggested here that this copyright regime will be most aligned to making use of Article 8(2) in particular, as utilising the fall-back exception will require the film archive to have copyright confidence, and confidence that this action will not cause reputational harm with rightholders and donors, to do so. For film archives aligned to this regime in a Member State with a sufficiently representative CMO for film, it seems very likely that they would seek to liaise with the CMO to agree a non-exclusive licence. This is due to the same confidence that this action will not cause reputational harm with rightholders and donors, especially in countries with effective stakeholder dialogue.

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Conversely, for archives aligned to the “Oppressive” copyright regime, it seems very unlikely that they will be able to incorporate utilising out-of-commerce works into their practices. The current lack of clarity of terms including “commercial use”; “non-commercial use”; “out-of-commerce” and “customary channels of commerce” are likely to be incompatible with the meanings of strict legal compliance, copyright fear, and fear of loss of jobs if the archive closes. For this reason, it is unlikely that archives aligned to this copyright regime would feel able to utilise the fall-back exception, as it will be deemed too high-risk.

97

There is more likelihood that they would consider utilising Article 8(1) if there is a sufficiently representative national CMO, as this places less onus on the archive itself to make copyright decisions, as the licensing process will be led by the CMO. That said, the strong meaning of fear of reputational harm with existing and future donors and rightholders could lead to the decision that agreeing non-commercial licences with a CMO would discourage rightholders from trusting the film archive and its motives.

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The “Pragmatic Compliance” copyright regime is positioned between the Active Agency and Oppressive regime, as legal compliance is adhered to in almost all areas, with some limited exceptions where the staff lack confidence or knowledge. Its meaning of general compliance, hesitancy about limited legal compliance, and fear of reputational harm suggest that there is a lesser chance of utilisation in these archives than Active Agency regimes, but more so than Oppressive regime archives.

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As there is general copyright and legal compliance, it is possible that film archives aligned to this regime will feel able to utilise Article 8(1) at least, as they have more legal clarity and the CMO will lead the process for them once a licence is agreed. However, it was noted in this regime, that there is some “mistrust” of CMOs. This relationship with CMOs would have to be strengthened considerably for Article 8(1) to be utilised by film archives. It could be that this mistrust stems from a lack of engagement with CMOs. With this mistrust in mind, it remains possible that Article 8(1) would be utilised.

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Future research could apply the sub-regimes proposed here to a wider variety of film archives and CHIs, to test their generalisability, which would widen the scope of this framework. The author is very keen to hear from any researchers or cultural heritage institutions who are interested in testing or applying this theory more widely—and to improving its usefulness.

*by Melanie Stockton-Brown, Senior Lecturer in Law at Bournemouth University, and member of the Centre for Intellectual Property Policy & Management. All suggestions, comments, and questions to the author are welcome, and can be emailed to mstocktonbrown@bournemouth.ac.uk. For other articles by the author on out-of-commerce works and film archives, see Melanie Brown “Exploring Article 8 of the Copyright Directive: Hope for Cultural Heritage” in Luigi Carlo Ubertazzi (ed.) AIDA Italian Annals of Copyright XXVIII, Giuffrè Francis Lefebvre, 2019; Melanie Stockton-Brown, Finding the Lost Films: Out-of-Commerce Works in the Archive (Illustrated Zine) 2021; and Melanie Stockton-Brown “Out-of-commerce Copyright Works in EU Film Archives: A Solution?” Journal of Film Preservation (2021) 105, pp. 29-38.