Christian Engström, Pirat

3 oktober 2011

Orphan Works – A Very Limited Proposal

Filed under: English,informationspolitik,Orphan Works — Christian Engström @ 6:44

The Commission has presented a proposal for certain uses of orphan works

The EU Commission has presented a proposal for allowing certain uses of ”orphan works”. These are (older) works that are still covered by copyright, but where the rights holder is unknown or cannot be located.

It is a good thing that the Commission addresses this problem, which needs to be solved. Unfortunately, the proposal is very limited, and far from a complete solution to the problem of ”the black hole of the 20th century”.

Some of the limitations of the proposal are:

  • Only libraries, museums, and public broadcasters may take advantage of works that are declared orphan. This means that for example documentary film makers who would like to include historic footage in their film will get no help from this directive.
  • Only published material. Libraries and museums have large collections of unpublished material, that in many cases would be the most interesting to have digitized and made available. The directive does not cover unpublished material at all.
  • Only books, magazines and films. The directive neither covers sound recordings (music or speech) nor pictures, which again limits its usefulness to libraries and museums.
  • No mass digitization. The requirements for a diligent search for every work that is to be digitized and made available more or less precludes mass digitization from a practical point of view. The directive is also restricted to the kind of public institutions who would probably want to digitize all or most of their collections, but will not have the money to do so in a hundred years.

But still, it is a good thing that the Commission for once has come with a proposal in the area of copyright that is not just about stricter enforcement, so let us regard the glass as half full instead, and take note of some positive things in the proposal:

  • Diligent search. The basis of the whole directive is that if you make a bona fide diligent search for the rights holder and cannot find him, a work can get declared as orphan, so that it may be digitized and made available. This is a good principle, provided that the requirements for the diligent search do not get so demanding and onerous that it becomes impractical.
  • Mutual recognition. The diligent search should be done in the country where the work was first published. Once it is declared orphan in that country, it automatically is regarded as orphan in all of the EU. This is a very sensible and important principle. Without it, the directive would no allow sites like Europeana to make orphan works available unless the diligent search was repeated 27 times for each work.
  • The television archives of (at least) the public broadcasters are covered by the directive, which is a good thing. There are lots of interesting programs that the broadcasters have in their archives that they are not allowed to show to us, the general public who paid for them in the first place. It is good if the directive can remedy this.

The proposal from the Commission has now gone to the European Parliament, where members may suggest amendments to the proposal in the relevant committees. The lead committee is the legal affairs committee JURI, where I am a member.

You can find the preliminary time line and the relevant documents at the Legislative Observatory page of the European Parliament. There you can find the proposed directive (pdf), and a summary of the Commission’s impact assessment (pdf) which accompanied the proposal.

Please feel free to suggest amendments to the Commission’s proposal that you would like to see.

8 kommentarer

  1. What if a copyright has a designated rights holder in one country, but where the ”legal acqusition” of this rights holder is not acknowledged in another country, where it is consequently considered orphan?

    The case of ”Mein Kampf” comes to my mind, where the Swedish ”Högsta Domstolen” did not acknowledge the legality of Bayern being the rights holder (of seized ”Reichsvermögen” after WW2) and thus declared the work to be orphan.

    What will have precedence according to this directive: Bayern and the winning powers of WW2. Or the Swedish Högsta Domstolen?

    Kommentar av viktualiebroder — 3 oktober 2011 @ 8:31

  2. According to the proposal, the diligent search is done by searching in the relevant sources and databases appropriate for the kind of work in each case. The member state shall come to an agreement with the rights holders in each area to determine which sources and databases which are suitable.

    As earlier mentioned the search should have to be done in the country of first publication.

    In all it seems like a reasonable procedure.

    Kommentar av Johan Tjäder — 3 oktober 2011 @ 9:55

  3. Anyone can see that this proposal is a lot less than glass half full.
    This is just window dressing that can be pointed to as a complete solution even though it doesn’t really solve any significant part of the problem.
    The proposal allows the distraction of orphan works to be swept under the carpet and the focus brought back to ”the starving artists” i.e. full-on drive to ever longer copyright terms and ever stricter enforcement.

    Kommentar av anonymous — 3 oktober 2011 @ 10:43

  4. @Anonymous (#4)

    The orphan works problem needs solving anyway.

    Anyway, since they are entering into a database solution anyway, it opens up for a renewal regime, where authors have to register for continued protection. That means certain very popular works would go on perhaps longer than today, while a vast majority would go into the public domain much faster than today.

    Kommentar av Johan Tjäder — 3 oktober 2011 @ 10:58

  5. It’s better then nothing, and once the procedure is established and working the scope can be extended.

    Kommentar av Pelpet — 3 oktober 2011 @ 18:16

  6. What about the issues with freedom of speech and protection of sources (meddelarfrihet) that has been raised in connection to requirement to search (investigate) who has produced a work. I.e. if someone says they want to republish something from an anonymous blog, like the Swedish defence blog Wisemans Wisedom, would it be legal and even required to investigate the real author? This really stumped me when I heard about this complication.

    Kommentar av kallistiman — 4 oktober 2011 @ 12:26

  7. […] is often the case in the EU, the proposal from the Commission, which was very limited to start with, has now been watered down even further during its journey through the parliamentary […]

    Pingback av Orphan Works: A Missed Opportunity « Christian Engström, Pirate MEP — 6 september 2012 @ 23:50


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