Orphan Works: A Missed Opportunity

The orphan works will most likely remain locked in

Next week, the European Parliament will be voting on the dossier Certain permitted uses of orphan Works (2011/,(COD)). It deals with the issue of books, articles, music, pictures, films etc. where the author or rightsholder cannot be identified or found. These are called orphan works in the terminology of copyright lawyers.

Libraries, museums, archives, and public broadcasters have a lot of them in their archives, but because they are still under copyright they are effectively locked into those archives, since they cannot be made public legally.

About a year ago the European Commission presented a long-awaited proposal for a directive to remedy this situation.

As 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 committees, and the negotiations between the EU institutions.

More or less the only good thing that remains in it is the principle of ”mutual recognition of diligent search. This means that if a work has been found to have orphan status in the most relevant EU country, it will automatically be considered an orphan work throughout the EU. If you’re looking for a Swedish author you only have to look in Sweden (unless you have specific reasons to believe she could be found somewhere else). This eliminates the need to go through the motions of searching for authors in countries where you have no reason at all to believe they could be found.

But apart from that, the result is incredibly lame. It is uncertain if it will be any use at all to the libraries and museums who want to digitize their collections and make orphan works available to the public.

To the casual observer who reads through the text of the directive, it may look as if it would be quite helpful in allowing libraries and other institutions to make parts of our common European cultural heritage available throughout the EU. But as always, the devil is in the detail. The directive is littered with provisions that may look harmless on the surface, but in reality are so restrictive that they risk making the whole directive more or less completely useless in practice.

One of the big problems is that although the libraries and museums are strictly prohibited from making any profits from the orphan works, they are still required to pay compensation if a rightsholder suddenly reappears and claims ownership of a work that was believed to be orphan.

This creates an imbalance, and means that every time an orphan work is made available, it is associated with a financial risk for the library or museum. It remains to be seen how many public libraries and museums in Europe feel they are well funded enough to take that risk with a large number of works.

This problem was not present in the original proposal from the Commission, but was introduced into the directive by the Conservative and Liberal groups in the parliament. They insisted on introducing compensation for reappearing rightsholders, and at the same time they insisted on eliminating even the very limited commercial possibilities that the Commission had put in the original proposal.

According to the directive, the orphan works may not be used for any commercial purposes. The directive deliberately includes no provision that would allow publishers, record companies, or others to republish works that are currently unavailable to the public.

In this particular context, the Conservatives in the European Parliament seemed to regard money, free enterprise, and entrepreneurship as truly evil things, that must be kept at bay at all costs. So did the Liberals. Don’t ask me why.

This is a real pity. Suppose, for example, that somebody has a small publishing house that specializes in military history. In this area there are oceans of orphan texts, pictures, and other works. Making these works available could have great cultural value, and in the hands of the right entrepreneur, quite possibly some commercial value as well. But the directive says no.

The problem is the same for any documentary film maker who wants to use historic footage which has no known rightsholder. Or for the small record company that specializes in older jazz recordings, and would want to republish material from the archives. The directive says no.

These are just a few examples, but they are typical. The really famous and well known films, music recordings, and books very seldom become orphans.  Since they still have obvious commercial value, the rightsholders keep track of them, and continue to make them available. George Lucas hasn’t forgotten that he owns Star Wars.

The orphan works issue is mostly about narrow culture, outside the commercial mainstream. A good directive could have meant a boon for the cultural diversity that European politicians are so fond of praising when they are making dinner speeches. But alas, it didn’t happen.

I have been fighting as hard as I could to turn the directive into something that would be useful for libraries, museums, and public broadcasters, in close cooperation with the representatives for those institutions, especially Information Sans Frontièrs, who represent the libraries, museums, and archives, and who really would have wanted to see a useful directive in this area. But in the end, we didn’t succeed.

As the shadow rapporteur for the Green group (i.e.: the member who follows the dossier on behalf of the political group), I am recommending the group to abstain in the vote next week. This won’t have any effect on the outcome, as the directive will be passed by a large majority consisting of at least Conservatives, Liberals, and Social Democrats. But it at least sends a signal that we are not at all happy.

This time, the copyright fundamentalists won. This was a missed opportunity.

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Read more: Information Sans Frontièrs comments in June, when the deal we’ll be voting on next week was announced.

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