COMMUNIA policy paper on the proposed orphan works directive

Today the COMMUNIA International Association presents its first policy paper. The paper analyzes the European Commission’s proposed directive on certain permitted uses of orphan works (COM/2011/0289) in the light of its effects on the Public Domain. The paper contains suggestions for improving the directive to make it more suitable to the stated objective of increasing access to cultural heritage material that is currently locked away by a dysfunctional copyright system.

COMMUNIA is especially concerned with the narrow focus of the directive and its one-sided view on diligent search. In its current form the directive does not meet COMMUNIA’s March 2011 policy recommendation on orphan works:

Recommendation #9: Europe needs an efficient pan-European system that guarantees users full access to orphan works. Both mandatory exceptions and extended collective licensing in combination with a guarantee fund should be explored. Any due diligent search requirements should be proportionate to the ability of the users to trace the rights holders.

According to the policy paper, a main weakness of the proposed directive is its narrow focus on public cultural heritage institutions as the only beneficiaries of the proposed exceptions allowing the use of orphaned works:

It is COMMUNIA’s position that the group of users who may benefit from the orphan works directive should be widened to include everyone. The targeted group of end users should include individuals as well as non-profit initiatives like Wikipedia, which would currently not benefit from the proposed directive. Wikipedia is one of the most important platforms for access to cultural heritage information drawing more than 136.9 million European users alone.

A further concern is the vague standard for search.

There need to be mechanisms to determine the location where a search has to be carried out in cases where the works have not been published or where it is unclear where the works in question have been first published.

The full set of comments in the COMMUNIA policy paper on the proposed orphan works directive can be downloaded here. For further information about the paper please contact the COMMUNIA Association’s Orphan works working group at communia DOT association AT gmail DOT com.

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