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 cleanest solution would be to shorten the protection time from today’s life + 70 years to something that is more in line with the commercial realities of the cultural sector. Unfortunately, this is almost impossible to do quickly, since it would require re-negotiating the Berne Convention and other international treaties.
This means that in practice, there are essentially three possible solutions to the problem:
- Do nothing, and accept that most works from the 20th century cannot be digitized,
- Extended collective licensing, or
- Recognition of orphan works after a diligent search.
If we rule out option 1 as being unacceptable, the choice stands between extended collective licensing and a system based on the recognition of orphan works after a diligent serach.
Extended Collective Licensing
Extended 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 and collect money for the use of the work. I the (real) rights holder turns up at a later date, the collecting society will pay the money to him. If no rights holder turns up and makes the claim, the collecting society will keep the money and distribute it to its members.
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 collecting societies can look forward to quite a lot of money that will never be claimed by anybody.
The collecting societies have managed to convince the Nordic Public Service Broadcasters that collective licenses are the way forward. Public service broadcasters in Europe have a rich archive of 2.2 million television programmes and 10.5 million radio programmes from the early days of broadcasting to the present, the Nordic PSB wrote in a letter to members of the European Parliament in 2009.
Each production in the archives may involve up to a hundred rights holders. Finding and signing contracts with each one is difficult. Doing it for the whole archive is virtually impossible. Most of this common cultural heritage is currently locked away in the archives, because of the cost and difficulty involved in clearing the rights.
It is true that a system based on extended collective licensing would solve the problem for the public service broadcasters, and for other big commercial players. By paying money to the collecting societies, the broadcasters get protection from future lawsuits from the actual rights holders, in case any of them should appear. This would remove the legal uncertainty that is currently preventing the broadcasters from making their historic material available to the public.
But if collective licensing would solve the problem for public broadcasters and other big commercial players, it would would be very harmful to all forms of non-commercial culture production.
Take, for instance, a blogger who wants to put an old photograph taken by an amateur on his blog, to illustrate an article. If the rights owner is unknown (which is true for most older pictures that were created during the 20th century), it may technically be in breach of copyright to republish the photograph. In practice, however, the risk that a rights owner should appear and sue the blogger is almost negligible.
But if the collecting societies were given the rights to everything that has been created where the real rights holder is unknown, it would suddenly become highly risky to republish any picture unless you know exactly who the rights owner is and can prove it.
The collecting societies have a history of enforcing any rights they are given in a quite aggressive way, and there would be nothing to stop the from threatening anybody who republishes anything with a law suit unless they pay up.
The burden of proof would shift from the situation today, where anybody who wants to sue somebody for copyright infringement first has to prove that he actually owns the rights, to the reverse situation, where the collecting societies would have to prove nothing, since they would automatically own everything that cannot be shown to belong to a known rights holder.
A solution for orphan works based on collective licensing might be acceptable to big commercial players, but it would seriously harm the participation culture of the Web 2.0, as well as all other forms of non-commercial cultural production.
There is also the problem that the collecting societies still operate on a national level, so even if you pay one collecting society in the most relevant country, you still cannot distribute the material on the European level. This means that the objectives of Europe’s Digital Agenda cannot be fulfilled in this way.
The collecting societies have so far been unable to provide a one-stop-shop for the rights that they already have to works that are not orphan. This is a big problem in itself, and one of the major factors inhibiting the Internal Digital market. Locking up the orphan works in the same logjam would be a step in the wrong direction.
It is understandable that the collecting societies want to grab as many rights as they can, in order to collect as much money as possible for themselves and their members. That is, after all, their whole purpose.
But it is very hard to justify why they should be allowed to take over the rights to works that neither they nor any of their members have had any part in creating.
If the author of an orphan work would have wanted a collecting society to manage his rights, all he would have had to do was to register with the collecting society. The reason why he chose not to do this could be that he just did not bother, and never thought about it. But in many cases it is a deliberate decision by the author because he wanted the work to be freely available and part of our common cultural heritage.
To still confiscate those rights and give them to a collecting society anyway would not be respectful of the wish of the author, even if the collecting societies would like it they benefit from it.
Recognition of orphan works after diligent search
The alternative way to handle the orphan works is to introduce legislation that says that after a diligent search for the rights holder, a work can be declared orphan by some institution. This affords legal certainty to anybody who wants to make available or use a work where the rights holder can be found.
There are several different technical solutions to how to achieve this, that vary in their details. A statutory exception on the European level would be one possibility, but there are others as well. In order to be meaningful and fulfill the objectives of the Digital Agenda, the solution must be on the European level, so that the works can be disseminated at least throughout the internal market.
The European Commission is about to present a proposal on orphan works in the print sector. It will be based on rules for mutual recognition of orphan status by the Member States.
Once a diligent search has been carried out in the country where the work was first published, it shall be deemed orphan within all of Europe if no rights holder was found in the diligent search. The searches are to be carried out by public libraries and similar institutions, and saved as documentation of the orphan status. This provides legal certainty.
Each Member State will be required to set up a system where they specify a number of publicly available databases that should be searched before a work published in that country can be given orphan status.
This is a good model, so it is a proposal we should support. In order to be as useful as possible, it would be desirable to have as many different kinds of works included in the original proposal, preferably all.
For books and printed materials, the rules should be designed so that all players who have so far shown an interest in digitizing the material, are allowed to contribute to the effort. This would include not only public libraries and institutions, but also non-commercial volunteer projects like Project Gutenberg, and commercial players such as Google. Since public libraries have limited resources, the risk is that digitization of the European cultural heritage will take a very long time if they are the only ones allowed to contribute.
When designing the rules for commercial players to contribute, it is important to make sure that no new rights should be created by the act of digitizing the material, in order to avoid the risk of a private monopoly being created.
It is also important that the procedures prescribed by the Member States for doing the diligent search are not to onerous on the institution that wants to establish the orphan status of a work. When doing mass digitization today, the rights clearance is often more expensive than the actual digitization.
Depending on the definition of “orphan works” and depending on the practical meaning of “diligent search”, the percentage of expected orphan works among in-copyright works and the costs to prove that they really are orphan works will vary greatly, the head of the German National Library points out.
A solution like this is what that the public libraries prefer. It would provide legal certainty for digitization projects, and would solve the orphan works problem for libraries like Europeana.