Orphan works hearing in JURI

Europeana

Last Tuesday, there was a very interesting workshop on orphan works in the EU legal affairs committee JURI.

An orphan work is a work that is still in copyright, but where the rights owner is not known or cannot be found. It can be a book, a song, a film, or a photo, or any other kind of work that falls under the copyright legislation.

Orphan works present a big problem for anybody who would want to use them. If you just go ahead without getting a permission, you run the risk that the rights holder suddenly turns up and sues you for a large amount. As we all know, courts can be quite prepared to set the damages for even minor copyright infringements to pretty astronomical figures. In many cases, this is simply not an acceptable risk.

But since there is no known rights holder that you can ask for a license, there is nothing you can do about it. No matter how valuable you think it would be to share that work with the world, there is no way to do it without breaking the law and exposing yourself to a great financial risk. The orphan works are effectively locked away by the copyright system.

This is not a small or marginal problem. A large part of our common cultural heritage from the 20th century falls into this category. About 75% of the books that Google want to digitize as part of their Google Books initiative are out of print, but still under copyright.

Even if it is theoretically possible to find the rights holders for many of these books by making a thorough investigation in each individual case, it simply becomes unfeasible when you want to do mass digitization.

And Google Books is not the only project to digitize works and make them available, even if it is the one that has attracted the most attention lately. There is an EU project called Europeana with a similar goal, as well as the open initiative Project Gutenberg. All of these are being held back by the problem of orphan (or semi-orphan) works.

Unless we do something, most of our common cultural heritage from the 20th century risks getting lost in a black hole before it becomes legal to save it for posterity. The Commission wants to address this problem, and solve it as quickly as possible. This a very good thing, and an initiative that we should support.

The workshop in JURI started with some introductory remarks by JURI chairman Klaus-Heiner Lehne (Christian Democrats, DE) and Swedish state secretary Magnus Graner, who was in Brussels for the event.

The next speaker was Tilman Lüder, who is head of the unit for Copyright and Knowledge-based Economy at the Commission. He gave a very thorough briefing on the subject.

There are essentially three possible solutions to the problem:

1. Do nothing, and accept that most works that are younger than about 150 years cannot be digitized,
2. Introduce a statutory exception on the European level, to permit the use of orphan works, or
3. Introduce a system based on collective licensing.

If we rule out option 1 as being unacceptable, the choice stands between a statutory exception and collective licensing.

Collective licensing means that you legislate to the effect that for works where the rights holder cannot be found, management of the copyright is taken over by a collecting society, who will then be able to negotiate on behalf of the (real) rights holder, and collect money that will be given to the rights holder if he should turn up at a later date.

In a completely unsurprising manner, this is the solution favored by the collecting societies. Since, after all, most of the rights holders will never appear, the collection society can look forward to quite a lot of money that will never be claimed by anybody.

Even though the collecting societies explicitly do not have any rights to the works (which are, after all, orphan), they still want to be able to collect money from anybody who is interested in making these works available as part of our common cultural heritage.

At the workshop, this position was represented by Tarja Koskinen-Olsson, from the International Federation of Reproduction Rights Organisations (IFFRO). This is an umbrella organization for collecting societies in various countries.

A statutory exception means that you legislate to make the orphan works available directly, according to rules that are specified in the exception. This is the solution that the public libraries and their organizations prefer. At the workshop, this view was represented by (among others) Elisabeth Niggemann, representative of Europeana and director general of the German National Library.

In order to be effective, the exception would have to be introduced at the European level, so that works that have been digitized in one member state may be made available in other countries as well. If the exceptions were to be on the national level, this would not be enough to create a single European digital market and make European culture available to us all. But a European level statutory exception could untie the knot.

Regardless of whether the solution that is ultimately chosen is based on collective licensing or statutory exceptions, there is a need to create a searchable register of copyrighted material, so that it becomes possible to determine the status of a work, and find the rights holders if they are known.

There is an initiative called ARROW, which stands for Accessible Registries of Rights Information and Orphan Works. The idea behind this register is to document works that have been established to have orphan status, after a diligent search for the rights holders has been made without success.

The problem with this approach is that it normally is quite a burdensome task to carry out this diligent search for each work. Many older works (perhaps the majority) simply do not have enough commercial value to justify such a search, even if they still have cultural value to at least some people, who would be interested if they were made available.

A much better solution would be to have a register where rights holders can register the works that they have an interest in upholding their copyright on.

The statutory exception would then specify that for works that were published more than, say, 10 years ago, the rights holder must register the work if he wants to continue collecting royalties on it. Otherwise, the work will be considered to be free to use for anybody.

If the rights holder for a work that is older than 10 years later turns up he would be allowed to register his rights, but he would not have the right to demand compensation for use of the work during the time when it was not registered. This rule is necessary to provide legal certainty.

Since I am a member of the JURI committee, I was allowed to give my comments during the workshop, and I expressed my support for a statutory exception along these lines. Except for the representative from the collecting societies, I got the impression that most of the other parties involved would be happy with a solution like this.

For companies and individuals that hold the rights to commercially valuable older works, it is a very small burden to register the work and provide a public record of whom to contact to negotiate for licenses. And for the millions of works from the 20th century where the rights owners no longer have an interest, at least not commercially, they will automatically become available for digitization and other use as part of our common cultural heritage.

In my mind, this would represent a true win-win solution that can be implemented very easily and fairly quickly by an EU initiative. This is an issue that needs to be resolved to bring Europe into the information age in a sensible way.

Let’s go for it.

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