Statement by Copyright for Creativity on the Proposed Orphan Works Directive

C4C is a broad-based coalition of 26 European civil society, libraries, industry, consumers and creators that seeks an informed debate on how copyright can more effectively promote innovation, access, and creativity. We strongly support a balanced copyright regime that enables and encourages access to copyrighted works while preserving appropriate incentives and rewards for creators.

We wish to express our concerns with the proposed Orphan Works Directive in its current form, as we believe that without amendment it will fail to:

  • Ensure that a growing part of Europe’s cultural heritage is accessible to future generations;
  • Support a flexible and economically sustainable model that promotes large-scale public and private digitalization of our common cultural heritage;
  • Create real social value and durably address the needs of all Europeans.

It is estimated [1] that approximately 30% of the collections of cultural institutions, comprising several hundreds of millions of works of all kinds are currently inaccessible to the public online under current European copyright law. It is believed that about 40% of in-copyright works become orphaned over time and at present they date from approximately the 1870s up to the 1990s. More are being created as the 21st century progresses. By their very nature orphan works are generally not currently commercially active, but many are of immense cultural, historical and research value.

Although the Commission has undertaken a number of initiatives over the past few years including a Green Paper on “Copyright in the Knowledge Economy” and several public consultations and expert committee reports, we are still waiting for a breakthrough that provides a sustainable solution to the orphan works problem. We believe that the current version of the Orphan Works Directive must be amended to ensure that it provides an effective solution to this situation and demonstrate the capacity of copyright to adapt to the digital environment and to the opportunities it offers.

To ensure the Orphan Works Directive will meet its goals and not undermine existing access-related provisions of the acquis, we urge the European Council and Parliament to amend the Directive to provide for the following:

Cross-border licensing

The proposed text fails to provide cross-border licensing. This is essential to ensure that systems facilitating mass digitisation projects of orphan works will not be limited to use solely within the silos of the Member State’s respective territories. This is also crucial for the success of Europeana, the compendium of the European Union’s digitization efforts. Limitation to territorial licensing is inadequate in the digital age where territoriality is largely irrelevant to information access, and will lead to a situation where users from different countries will have different and unequal access to the same European cultural heritage for no reason other than where they live.

Recommendation: The Directive should provide that an orphan work legitimately licensed in one Member State may be lawfully used on the same basis in all other Member States throughout the text.

Permitted acts of reproduction

The Orphan Works Directive unnecessarily restricts the purposes for which an orphan work can be reproduced. This approach fails to provide the flexibility needed for new uses to develop for the digital environment. In addition, this Directive seems to be attempting to limit by the back door many of the important uses of copyright works that are currently permitted under the Information Society Directive (2001/29/EC).

Recommendation: Article 6(b) of the Directive should be amended to ensure that no otherwise-permitted acts of reproduction will be limited, by deleting the second part of this Article starting with “for the purpose of…”.

Diligent search requirements

The diligent search requirements required by the Directive are far too restrictive. While we support the concept of diligent search, the requirements are too onerous as regards the timing and level of searching and should not be extended to works embedded or incorporated within the main work. There is a need for a reasonable, diligent search, performed in good faith (but without further detailed requirements) as the prerequisite for the use of an orphan work. Without this amendment, laborious manual searching will permit only occasional use of orphan works.

Recommendation: Recitals 12, 13 and 14 and article 1.3 of the Directive need to be amended to ensure that diligent search does not extend to embedded or incorporated works.

Record keeping requirements

Although we accept the need to keep records of searches and uses of works, the requirements in the Directive are overly bureaucratic, technically unrealistic and raise questions in regards to data protection and privacy laws.

Recommendation: Record-keeping should be limited to the maintenance of publicly-accessible records, without further technical specification.

Copyright limitations and exceptions

The current version of the Orphan Works Directive has the potential to undermine existing limitations and exceptions to copyright under the EU acquis. Specifically, it is striking that the Directive does not make clear that it should in no case prejudice the exceptions enumerated in Directive 2001/29/EC on the harmonisation of copyright in the information society.

Recommendation: Recital 4 and article 8 of the Orphan Works Directive should explicitly provide that the Directive is without prejudice to existing limitations and exceptions as established in Directive 2001/29/EC.

In addition to the points raised above, we would also like to draw attention to and align ourselves with the Trans-Atlantic Consumer Dialogue’s Resolution on Unlocking Access to Orphaned Works of June 2011 [2] and the memorandum on the Orphan Works Directive by Information Sans Frontières from 2011 [3].

We ask, and hope, that the Members of the European Parliament will make the necessary modifications to the Directive that we suggest to ensure that it will allow for a sustainable, effective, and durable solution to the Orphan Works problem fit for purpose in the 21st century.

[1] Recent studies on rights clearance and orphan works include:

Stratton, Barbara (2011). Seeking new landscapes – A rights clearance study in the context of mass digitisation of 140 books published between 1870 and 2010. British Library/ARROW. See here and here.
Vuopala, Anna (2010). Assessment of the orphan works issue and costs for rights clearance. European Commission. See here.
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. Joint Information Systems Committee and the Collections Trust. See here.
Troll Covey, Denise (2005). Acquiring copyright permission to digitize and provide open access to books. Digital Library Federation Council on Library and Information Resources. See here.
[2] http://tacd.org/index2.php?option=com_docman&task=doc_view&gid=301&Itemid=40

[3] http://www.libereurope.eu/sites/default/files/ISF-OW-Council-111111.pdf

  • Date: February, 2012