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Institutional and Legal Affairs, PUBLICATIONS, Structural and Cohesion Policies

Digitisation and Online Display of Orphan Works

Copyrighted works whose rightsholders are not known or cannot be located or contacted in order to obtain copyright permissions are called orphan works. Numerous European cultural institutions hold in their collections orphan works with significant educational, historical and cultural value. In May 2011, the Commission made a proposal for a new EU directive governing the status and use of orphan works. One target of the proposed legal framework is to promote the creation of public digital libraries and cross-border access to Europe’s cultural heritage.

The Commission proposal for a directive of the European Parliament and the Council on certain permitted uses of orphan works suggests establishment of a diligent search mechanism to identify whether a particular work is an orphan work. Furthermore, it includes measures on how to make this work available to the public online under certain conditions and for specific purposes. The concept of mutual recognition allows cross-border dissemination in the EU. The proposal also introduces a possibility for the owner of the work to put an end to the orphan work status.

In trialogue on 6 June 2012 an informal compromise text was adopted which introduced a number of changes to the original proposal; the EP voted the compromise text in plenary on 13 September.  The Council adopted the directive on 4 October.

See also:
Orphan works in the digital era / Library Briefing by Nic Copeland, 30.08.2011, 4 p.

Analysis

 

Digitisation of books

Image copyright Claudio Bravo, 2012.
Used under license from Shutterstock.com.

Orphan works and other orphan material under national, regional and international law: analysis, proposals and solutions / Ellen Franziska Schulze, in European Intellectual Property Review, 2012, 34(5), 313-323
The author looks at a range of proposed and potential solutions in Europe, the United States, Canada, Japan, Korea and considers what is wrong with each, before offering a new suggestion for an electronic system.

Anhörung im Rechtsausschuss des Bundestages : Experten plädieren für eine angemessene Vergütung
Am 19. September 2012 fand eine Anhörung des Rechtsausschusses zur Digitalisierung verwaister und vergriffener Werke statt. Die Stellungnahmen der 9 Sachverständige finden Sie unter der Rubrik “Dokumente zur Anhörung”.

The New Renaissance: Report of the ‘Comité des Sages’, Reflection Group on Bringing Europe’s Cultural Heritage Online, Reflection Group on Bringing Europe’s Cultural Heritage Online, 2011, 45 p.
The report deals with a wide range of funding and policy issues related to digitising cultural heritage materials and ensuring public access to these works. It makes recommendations addressing the problems in the intellectual property system as well as guidelines for public funding and for public-private partnerships. Regarding orphan works the reflection group welcomes a European legal instrument. See especially chapter 5.3 on orphan works. p. 17 ff.

Orphan Works, Mass Rights Clearance, and Online Libraries: The Flaws of the Draft Orphan Works Directive and Extended Collective Licensing as a Solution / Allard Ringnalda, in Medien und Recht International 2011, 10 p.
(You can read the article on your screan; to download it, you have to open your facebook account)
This article examines the concept of extended collective license as a possible tool to solve problems created by the inability to clear copyrights for mass digitisation of entire library collections. The author claims that the problems to identify rightsholders to orphan works is only a small part of a wider issue, and therefore does not provide a sufficient answer to the problems related to mass digitisation of library collections.

Finding a Home for Orphans: Google Book Search and Orphan Works Law in the United States and Europe / Katharina Durantaye, Fordham Intellectual Property Media and Entertainment Law 2011, 38 p.
This article analyses the recent Google Book Search settlement and examines proposed legislative frameworks for mass digitisation in the US and the EU. The author highlights that problems related to mass digitisation of orphan works are international and require international solutions. She also suggests a solution based on extended collective licensing.

Intellectual Property Issues and Europeana / Jonathan Purday, Legal Information Management (L.I.M.) 2010, 7 p.
The Europeana portal is subject to several intellectual property issues. In this article the author examines barriers to public access, issues related to open source code and metadata as well as public domain. Furthermore, it focuses on matters related to copyright harmonisation and orphan works in the field of digital libraries.

How to Tackle Copyright Issues Raised by Mass-scale Digitisation / Benjamin White, Chris Morrison, study of the Directorate General for Internal Policies, Policy Department C: Citizens’ Rights and Constitutional Affairs 2010, 27 p.
This study analyses copyright law and general issues of digitisation. Among other aspects orphan works are under scrutiny. Moreover, it presents different models to provide public access to historical material online, such as Google Books and Europeana.

Stakeholder views

Workshop on Copyright: Tackling Orphan Works and Improving Access to Works for Visually Impaired Persons, November 2009, Directorate-General for Internal Policies, Policy Department C, Legal Affairs
This website includes links to European Parliament Directorate-General for Internal Policies Policy Department C studies in the field of Legal Affairs. Please, scroll down to year 2009 to see the list of publications related to the workshop on copyright with the special aim of tackling issues related to orphan works in the digital era. Several studies examine various present and possible European wide solutions to the matter.

Working document on copyright and digitisation of books / EP Working Group on Copyright, 18.03.2010, 38 p.
There is a small sction (4.2.1.) at p. 20, but orphan works are also mentioned at various other places in the document.

The Commission DG Internal Market website on orphan works includes the Commission proposal for a directive and preparatory documents related to it. The Impact Assessment on Cross-border Online Access to Orphan Works SEC(2011)615 analyses six different policy options and their various impacts. In addition, the website provides press releases, documents, and material on public consultations and hearings. It includes also stakeholders’ statements presented in hearings or as responses to consultations. One key document is the Green Paper on Copyright in the Knowledge Economy COM(2008)466/3, which reflects the role of copyright protection in enhancing distribution of knowledge in the fields of culture, science, and education. The issue of orphan works is part of this package.

Council  documents on Orphan Works /Council of the European Union, public register.
Various papers of the Council on orphan works, including the compromise text from 8 June 2012, as well as a “Non paper” by the Danish presidency, and “Drafting suggestions by the Belgian delegation” can be found in the Councils register.

Some reactions on the compromise text from June 2012:

  • Knowledge Ecology International criticises the limitations of the compromise to very specific uses and users and considers that certain national systems provide more flexible solutions.
  • Communia points out that the limitation to formal institutional users excludes individual end-users and non-profit initiatives like Wikipedia. PPPs would not be stimulated because the private organisations could not make the works available themselves. In addition, the increased liability would make memory organisations fear legal consequences. 
  • Information Sans Frontières states that an exclusion of commercial use would make partly-private funding impossible.

ISF position statement in the light of current development of the Orphan Works directive / Information Sans Frontiẻ̀res, 23rd March 2012, 3p.
Information Sans Frontieres, an alliance representing public cultural heritage institutions in Europe, expresses disappointment at the result of the vote in the legal affairs committee of the EP.  The association goes on to discuss what they think are the flaws of the directive and how these shortcomings can be improved upon.

Letter from the Print sector to the European Parliament’s JURI Committee, 29 February 2012  
This letter is signed by several organizations in the European print sector and it restates their position on the Orphan Works Directive ahead of the voting in the JURI Committee on 1 March 2012. 

Additional comments about the proposed directive on certain permitted uses of orphan works / International Federation of Musicians, December 2011, 3p.
This organisation represents musicians’ trade unions, guilds and associations in about 70 countries. In the EU FIM counts 26 musician trade unions from 21 EU Member States.  The association states very clearly which amendements it supports and which ones it rejects.

Copyright and the orphan works issue / Owens, Andrew D. United States Congress House Committee on the Judiciary Subcommittee on Courts, the Internet, and Intellectual Property, Hauppauge, N.Y.: Nova Science, 2010, 151 p., EP Library – Brussels – S 32.12 US COP 10
This book analyses stakeholders’ views on the issue and constraints on solutions imposed by the structure of US copyright law and international copyright obligations.

A High Level Expert Group on Digital Libraries operated during years 2006-2009 in the context of i2010 Digital Libraries Initiative. It included members from various stakeholders in the field of digitisation and access to cultural material. The group consisted of representatives of cultural institutions, publishers, technology firms, and academics. It was chaired by the Commissioner for the Information Society and Media, Viviane Reding. The group addressed matters related to copyright and public-private partnerships for digitisation projects. This website contains links to reports and memorandums published by the Expert Group. For example:

  • Final report: Digital Libraries: Recommendations and Challenges for the Future, High Level Expert Group on Digital Libraries 2009, 17 p.
  • Memorandum of Understanding Orphan Works, High Level Expert Group on Digital Libraries 2008, 5 p.

EU programmes and projects

Accessible Registries of Rights Information and Orphan Works towards Europeana -  ARROW project
The purpose of the ARROW project is to create a database to identify rightsholders and clarify the rights status of a work, whether it is an orphan or out-of-commerce work. The second phase of the project, ARROW plus, was launched in April 2011. It will extend the database to cover also multimedia material. ARROW is a project of a consortium of European national libraries, publishers and collective management organisations, also representing writers through their main European associations and national organisations. It is co-funded by the European Union programme eContent plus.

ARROW: Accessible Registries of Rights Information and Orphan Works Towards Europeana (In D-Lib Magazine, February 2012) discusses the progress of the project beginning 2012. The ARROW Plus project intends to extend the number of covered countries beyond France, Germany, Spain and the United Kingdom.

Europe’s Digital Library – Europeana
Europeana portal aims to bring Europe’s cultural heritage available to the public online. It is an access point to digitalised content from Europe’s museums, archives, libraries and other cultural institutions. It contains a growing amount of digitised books, maps, photographs, paintings, films, music clips, etc. Europeana is funded by the European Commission. The Europeana service has the Europeana Foundation as its governing body. The foundation is housed with the National Library of the Netherlands.

Europe 2020 is the EU strategy for smart, sustainable and inclusive growth for the coming decade. One of the seven flagship initiatives of this strategy is the Digital Agenda, which outlines policies and actions with the target to boost European digital economy. It also identifies known and potential challenges in the field. One of the key actions identified in the Digital Agenda is the creation of a legal framework to facilitate mass-digitisation and cross-border dissemination of orphan works.

The European Digital Library Initiative
The Digital Library Initiative was launched already in 2005 as part of the Commission’s i2010 strategy applicable at that time to promote the digital economy. That strategy was followed by a more recent initiative: the Digital Agenda. The Digital Library Initiative goals are to preserve and enhance public online access to Europe’s cultural heritage as well as to scientific information, such as research findings.

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