Research: Orphan Works Directive does not work for mass digitisation

trainwreck
Orphan Works directive: as useless as expected
Licentie

In 2012 the European Parliament adopted the Directive on ‘certain permitted uses of orphan works by cultural heritage institutions’. The directive intends to fill the gap between the mission of cultural heritage institutions to share cultural works to citizens, and the complex, costly, and sometimes impossible task of locating rightsholders to get permission for online publication of these orphaned yet still-in-copyright works.

COMMUNIA’s 2012 analysis of the directive showed that it was bound to be a train wreck. A preliminary comparative study of the situation in the UK, the Netherlands, and Italy undertaken by the EnDOW project reveals that the national implementations of the directive across Europe do not provide the much needed solution for the problem of orphan works.

Under the directive, cultural heritage institutions are allowed to publish works online for viewing (not re-use) after a ‘due diligence search’ has been performed, recorded, and submitted to the orphan works database at OHIM. Works that have been registered in this database can then be digitized and made available online under an exception to copyright. So far the project only published its initial results, but we can already see that this piece of legislation will most likely not contribute to large-scale use of orphan works by Europe’s Libraries, Museums & Archives.

The main reason for this is that the diligent search requirements established by the directive have been implemented by member states in such a way that the cost of undertaking a diligent search is prohibitive. The study collected over 210 sources, databases, and registers that need be checked in diligent searches in the UK alone. Researchers from Italy found 357 possible databases and registers. Of the 87 identified sources in the Netherlands, 40 were not freely accessible, and 36 of these required personal contact or a physical visit to an institute. Since the legislation requires cultural heritage institutions to be diligent, they need to check each and every source to be covered by the limited exception provided by the directive.

These results illustrate that the EU approach to orphan works is unreasonably complex and won’t adequately address the problem it’s trying to fix. This is further shown in the actual number of orphan works available through the OHIM Orphan Works Database, which currently only shows 1,435 registered works. More than half of them are in the collection of the Dutch EYE Film Institute (which has worked on rights clearance for these works since at least 2008).

The preliminary results of EnDOW provide evidence that the European Union has failed in this attempt to provide much needed digital access to Europe’s cultural heritage. Given that the Orphan Works Directive does not help with mass digitisation projects, this means that there is a continued need to provide legal mechanisms that allow cultural heritage institutions to make works in their collection available online.

Note: This contribution has been written by Maarten Zeinstra. Maarten is technical advisor to EnDOW. The ideas expressed in this post should not be attributed to EnDOW.

Are European orphans about to be freed?

This post by Lucie Guibault was first published on the Kluwer Copyright Blog and is reproduced here with kind permission of the author.

Last week, the European Parliament approved the draft Directive on certain permitted uses of orphan works. The approval of the Council of Ministers is expected to occur shortly.

This is big news indeed, for it’s the first draft directive in the area of copyright law to make it this far in more than 10 years. It’s been commented and reported by many.

The proposed directive is striking in many respects. Most prominent is the virtually unanimous opinion that the directive ‘is a step in the right direction’, but that it ‘will not facilitate nor promote mass digitization and large-scale preservation of Europe’s vast cultural heritage’. This conjures up the image of the elephant giving birth to a mouse.

The text of the proposed directive went through several iterations before reaching its current stage, including the last amendments brought by the Parliament to the compromise text of last July. Some of the sharp edges have been softened in response to criticism, but the main point of contention remains: how can a cultural heritage institution with millions of items in its collection proceed with digitization if it must conduct prior to use a diligent search for each item? Since this train could not be stopped, cultural heritage institutions are now looking in the direction of their own lawmakers and partner-stakeholders to determine what constitutes a ‘diligent search’ at national level, following the criteria they may establish pursuant to article 3(2) of the directive.

Continue reading

UK government proposal to modernize copyright underlines failure of EU approach to hostage works

The UK Government has published a Government Policy Statement based on the recent Consultation on modernising Copyright held in the UK. The document summarizes the findings of the consultation and outlines policy actions that the UK government intends to take. The policy statement (pdf) covers three fields where the government intends to legislate: ‘Improvements to copyright licensing’, ‘Extended Collective Licensing’ and ‘Codes of Conduct for collecting societies’:

The Government, following the Hargreaves Review, made a number of proposals to make copyright licensing more efficient and remove unnecessary barriers to the legitimate use of works while preserving the interests of right holders. These include schemes to allow use of ‘orphan’ works whose copyright holder cannot be found or is unknown, voluntary extended collective licensing, and introducing minimum standards of conduct for collecting societies, underpinned by a backstop power to impose a statutory code of conduct on a collecting society where required.

These measures bring some currently unlawful or unlicensed activities within the scope of legal activity, allowing licensing to occur and thus benefiting right holders and licensees alike. They have potential to cut costs and improve compliance with copyright law, and to improve confidence in the UK copyright system.(p.7)

In the light of the discussion about the ‘Orphan works’ directive the first two of these should be of interest beyond the borders of the Island Kingdom.Continue reading

‘Orphan works’ compromise fails to deliver

The compromise text of the proposed orphan works directive is finally out. If nothing unexpected happens, this text should be what gets adopted later this year, what needs to be transposed into national legislation within 2 years from then, and what cultural heritage institutions that are confronted with hostage works need to deal with for the next decade or two. This text also represents the first finished legislative project that is part of the European Commissions Digital Agenda, which attempts to make Europe ‘fit for the digital age’.

Given all of the above, it is unfortunate that the text also is a legislative train wreck that fails to make any substantial improvements to the situation in which memory institutions engaged in digitization efforts find themselves. The compromise text of the proposed directive (‘compromise’ refers to a compromise between the three EU legislative bodies the Commission, the Council and the Parliament, not a compromise between the many stakeholders affected by this legislation) has essentially abandoned the initial purpose of the proposed directive. That purpose was to ensure that the public gains access to those works that are held hostage by the copyright legislation that has failed to keep up with social and technological change. Instead, the proposed directive has morphed into a twisted attempt to protect the ideology underpinning 20th century copyright legislation against the effects of the problems created by the rigidity of this very ideology.Continue reading

‘Orphan Works’: European Parliament and European Council Announce Agreement on Draft Legislation

The European Parliament and the EU Council announced on June 6th to have achieved one further step toward EU legislation on ‘orphan works’ (we’re deliberately using ‘orphan works’ with comas because if this appellation is commonly used, it is based upon a metaphor being potentially misguiding; see our former post on Prof. Lydia Loren’s proposal on the ‘hostage works’ appellation).

Based upon the draft Directive on certain permitted uses of orphan works tabled by the Commission in 2011 (COM/2011/0289), about which COMMUNIA expressed some Policy Recommendations, the two European regulation bodies have come to an agreement. Although the deal is said to be ‘informal’ (it still has to get final approval from the Parliament’s Committee on Legal Affairs, Parliament as a whole and in the Council), it shows the ongoing efforts of the European regulator to move on with the ‘orphan works’ issue. The text of the agreement has not yet been made available. According to the press-release from the Parliament’s Committee on Legal Affairs:

“This legislation would allow everyone to access such “orphan works” and take forward the project of making Europe’s cultural heritage available online.”

It seems that the agreement would not bring major changes to the Commission’s proposal. This lets us think that our concerns about the shortage of the Directive are to remain, especially as regards its impact on the digital Public Domain. Nevertheless, a few elements unveiled by the press-release deserve some comments.Continue reading

Time to change perspective: Hostages, not Orphans

U.S Law Professor Lydia Loren has just published a draft paper that contains what may be one of the most sensible contributions to the ongoing discussion about the ‘orphan works problem’. In her paper ‘Abandoning the Orphans: An Open Access Approach to Hostage Works‘ she makes a strong argument that the very name that has been attached to this problem may be misleading and lead to false solutions and thus should be reframed as the ‘hostage works problem’.

Loren states that the term, which was first introduced in 1999, overlooks the core of the problem:

These works are being held hostage by a set of rules that result in an inadvertent lock-up of the expression these works contain. (p.22)

In the context of hostage works, the incentive for creation functioned as intended: the work was created. But the incentive for distribution has actually backfired. Instead of a risk of underinvestment in distribution we have a manifestation of such underinvestment. Copyright protection is obstructing distribution, not enabling or facilitating it. This is a type of waste: copyright law is “inhibiting access . . . without any countervailing benefit.” In addressing the hostage work problem, we should be focused on a solution that reduces the waste by removing the barriers to non-owner distribution. (p.23)

Focussing on the hostage status of these works helps with devising a system that can deal with the manifest market failure that hostage works represent. While Pallas Loren’s paper discusses possible solutions against the backdrop of US copyright law, her arguments are surprisingly powerful in understanding the current discussion on the European Union level. Continue reading

Information Sans Frontières: Orphan works directive in it’s current form creates more harm than good

Information Sans Frontières (ISF), an alliance representing public cultural heritage institutions in Europe, has published a new position statement on the proposed Orphan Works directive. On 23 March the ISF reacted to the recent changes in the proposal that resulted from the ongoing negotiations between Council, Parliament and the Commission stating that it was “deeply disappointed in the outcome.” The ISF is highly critical of the latest version which has transformed the proposed Directive into an instrument that is more likely to complicate access to orphan works than to promote it.

According the ISF there are 4 main issues with the Orphan Works directive in it’s current (23 March) form:

  1. The provision to require remuneration for past use of an orphan work as a rights holder re-appears needs to be removed. It undermines the entire purpose of the directive which is to create certainty for users of orphan works (we have raised this point before)
  2. The provision allowing commercial uses of orphan works (article 7 in the original proposal) needs to be restored in order to allow for public-private partnerships to fund digitization projects
  3. The provisions on technical requirements for record keeping related to diligent searches carried out in order to identify orphan works should be made less technology-specific.
  4. The ‘liability’ amendment that has been added as recital 16a needs to be removed as it increases legal uncertainty for users of orphan works and as such is counterproductive to the overall aim of the directive (facilitating the digitization of Europe’s cultural heritage).

This analysis provided by ISF is largely in line with the concerns raised by COMMUNIA in our policy paper on the proposed directive and later statements on this site. Overall Information Sans Frontières makes it clear that it considers the directive in its current form unable to achieve the objectives it is supposed to achieve. In an updated version of the position statement from 2 april the ISF concludes that:

… we hope that the high-lighted difficulties will be removed in forthcoming negotiations with the Commission and Council. If they are allowed to remain, the Directive will not achieve its purpose, according to the Commission’s IP strategy of promoting the digitisation and making available of the collections of European cultural institutions (p.13). We believe that the Directive will set damaging precedents, and will be of negligible use to our member institutions. As the intended beneficiaries of the Directive, we shall ask the Parliament to reject the Directive in plenary if these problems are not solved.

As we have mentioned here before it is alarming to see an organization representing the intended beneficiaries of the proposed directive reject it in its current form. This is more than understandable as the changes that have been introduced during the negotiations so far have turned a good but technically flawed instrument into an instrument that introduces additional uncertainties and restrictions for cultural heritage institutions that are already struggling to provide access to cultural records from much of the past century.

Cultural heritage institutions concerned over proposed European orphan works directive

This post by Lucie Guibault was first published on the Kluwer Copyright Blog and is reproduced here with kind permission of the author.

The Proposal for a Directive on certain permitted uses of orphan works, introduced in the European Parliament on 24 May 2011, has been following its merry way through the legislative meanders ever since. The debates around the text of the proposal are heating up right now, for the European Commission pushes for rapid adoption while stakeholders watch out against any measure possibly affecting their respective interests.

Already since the beginning of this year, the Danish Presidency has published two revised compromise proposals, one on 6 January and the second one on 10 February 2012. The last proposal was followed by a Presidency non-paper on a possible single database for orphan works for discussion at the Working Party on Intellectual Property (Copyright), held on 17 February 2012. The drafting suggestions made by the Belgian delegation have unfortunately not yet been made available.

The crux of the discussions revolves around the need under the Proposal for a directive for cultural heritage institutions to carry out a diligent search about the orphan status of a work and the extent of such an obligation. Cultural heritage institutions warn that the unhappy result of imposing such an obligation may be that large-scale digitization efforts will see no benefit, after the adoption of the Directive, over the situation they face now. The danger remains that the twentieth century will remain the unknown century for Europe’s children. Its culture will be inaccessible in digital format.

A realistic and practical approach about the kind of collection represented by orphan works is paramount. Examples are:

  • Books discussing the chances of war, published 1910-1913
  • Sound recordings of ordinary people, using ordinary speech, to illustrate regional dialects in Denmark
  • Anonymous political pamphlets expressing dissident views under the Communist regime in Hungary

For each of these collections the commercial value of the rights is zero or nearly zero. Safeguards for rightholders of orphan works are required, but need to be proportionate to the kind of material in a collection.

A call has been made by cultural heritage institutions to the Council of Minsters’ working group for a more balanced and practical solution as follows:

  • Diligent search, a valuable concept, must not necessarily apply to every work (including every embedded work), but must be proportionate to the collection being digitized
  • Restrictions on commercial use must be sufficiently flexible to allow for commercial funding of digitization projects
  • Requirements for recording diligent searches, and uses of orphan works, should not be over-specified in law
  • If the use of an orphan work is permitted by the national licensing scheme of a Member State, the Directive should provide for the permission to extend to all Member States in that particular case. (Such a provision would not impose licensing solutions on all Member States. But it would avoid a fragmented Internal Market of mutually exclusive licensing arrangements.)

The Presidency non-paper of 14 February partly responds to these concerns by suggesting that a single database be set up following the ARROW model to convey information about which work is being used and by whom.

The question remains, however, whether the other concerns voiced by cultural heritage institutions regarding the extent and the cross-border validity of a diligent search will be addressed in the final text of the directive.

To be continued!

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.