Two steps forward one step back: new presidency note on the proposed orphan works directive

There is a new (dated 4 November 2011) note by the Polish presidency on two issues that have turned out to be controversial among the EU Member States in the negotiations about the Commission’s proposed orphan works directive. Both issues addressed in the presidency note have been identified by COMMUNIA in it’s policy paper on the proposed directivedirective and it is not really surprising to see that these have turned out to be controversial among the Members.

Unpublished works

The first of the two questions addressed in the note is whether unpublished works should be covered by the directive. The COMMUNIA policy paper argued that they should be included as ‘the orphan works problem is especially acute in respect of unpublished works’ and it seems that this view is shared by a number of Member States (‘delegations’). According to the presidency note,

[s]ome delegations asked for the inclusion of unpublished works into the scope of the Directive. Other delegations had doubts whether this would be the right way forward.

the presidency note proposes

to reconcile these different views by providing for the possibility to extend the scope of the Directive to unpublished orphan works […] without putting an obligation on Member States that oppose such an approach. It also requires from Member States making use of such possibility to limit its application to works for which it is reasonable to consider that they are the “country of origin”.

In essence the presidency is proposing a compromise that lets member states decide if they want to include ‘their’ unpublished works or not. While this is certainly better then excluding unpublished works altogether, it further fragments an already flawed European attempt to provide a sensible answer to the orphan works problem.

Legal mechanisms for the use of orphan works

The second question addressed in the presidency note deals with “legal mechanisms for the use of orphan works”. The original presidency proposal included a mechanism based on the exceptions to the reproduction and making available rights provided for in Articles 2 and 3 of Directive 2001/29/EC.

According to note a number of Member States have argued for more flexibility in implementing the permitted uses of orphan works. The issue here seems to be to provide room for more far-reaching arrangements that not only cover orphan works but would also permit the use of orphan works as part of (extended collective) licensing arrangements. The note contains new language for Article 6 that seeks to provide member states more flexibility.

In this aspect the presidency note would enable development of alternative models for dealing with the problem posed by orphan works. This is in line with the position taken by COMMUNIA in it’s policy paper.

Two steps forward one step back

Unfortunately the presidency note also attempts to further strengthen the requirement ‘that a remuneration is due to rights holders that put an end to the orphan status of their works, including in the case of uses under the exception’ that was first introduced as part of the first presidency compromise proposal.

As COMMUNIA has argued in it’s policy paper this particular provision has the potential to undermine the entire purpose of the proposed orphan works directive as it ‘will create continued financial uncertainty for users of recognized orphan works’ and as a consequence ‘the directive would provide users of orphan works with very little practical benefits over the status quo’.

Information Sans Frontiers highly critical of proposed orphan works directive

Information Sans Frontières, a newly formed alliance from the library world (Europeana, JISC, LIBER and EBLIDA) has just released a memorandum on the proposed orphan works directive addressed to the Council of the European Union. The memorandum, backed by some of the the most obvious beneficiaries of the proposed directive is nevertheless highly of the proposal:

Information Sans Frontières is an alliance representing the institutions in the Member States addressed by the proposed Directive. We urge that the Directive should embrace unpublished as well as published works, and creative works in all media. We are unanimously of the view that the Directive is in danger of failing to achieve its policy objectives, in particular large-scale digitization projects. The Presidency compromise proposal has several inherent contradictions with respect to the purpose of the Directive.

  • It is too prescriptive of the methods to be used by the target institutions, insisting on procedures that in some cases will be impracticable
  • It is insufficiently hospitable to solutions based on licensing, which are mentioned briefly in Recital 20 but which have no legislative support in the following Articles in order to allow them to function across borders
  • It seeks to modify the exceptions contained in Directive 2001/29/EC by adding further restrictions on the freedom of action of the target institutions
  • It prescribes over-burdensome methods for institutions to publish their records

You can read the full text of the memorandum here (ISF does not seem to have a website yet).

The memorandum echoes some of the objectives raised by COMMUNIA in our own policy paper on the directive, and raises a couple of issues that we have not touched upon. It is of course rather worrisome that and organization such as Europeana, which embodies the aspirations of the Europeana Union in the digital heritage realm, makes it this clear that the proposed directive will not make it any easier for them to achieve it’s objectives. This is even more worrying since it is the same European Commission that is formulating these objectives, via it’s Recommendation Commission recommendation on the digitisation and online accessibility of cultural material.

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.