The Orphan Works Directive: a response from Information Sans Frontières

Information Sans Frontières has assessed the potential impact of the Orphan Works Directive (based on the final compromise text) on its constituency of members, namely the public archives, film and sound institutes, galleries, libraries, museums and similar cultural institutions of Europe, and responded:

Executive summary

Orphan works are an under-used resource for educational and cultural purposes, and Europe’s Digital Agenda presents a chance to bring them to the prominence they deserve. We are pleased that the European institutions of government have responded to our call for attention to this question, by devising an Orphan Works Directive which includes some interesting and positive features. We conclude, however, that the Directive’s aim to facilitate mass or large-scale digitisation of Europe’s cultural and educational heritage (mentioned in its first Recital) has not been achieved by the Directive, which will be useful only for niche-purpose, small-scale digitisations.   In the Conclusions to this document we look forward to further specific legislation.

Introduction

The Directive aims to permit the digitisation and wider availability of the orphan works held in Europe’s public institutions.  Our institutions hold literally millions of orphan works  — copyright works which, because their rightholders cannot be found, can currently only be stored and consulted in situ, without further uses, whether for education, research, or cultural enjoyment, which would require permission from the rightholder.

Welcome features of the Directive

In effect the Directive provides an exception to copyright for the special purpose of cultural and educational uses by public institutions.  We welcome this exception, which provides our institutions with a lawful mechanism for an activity which we believe is in the public interest.

We are glad to note that the exception will apply throughout the European Union.  Even better, according to the terms of the Directive a work deemed to be orphan in one Member State will be regarded as orphan in all Member States.  This opens the way for internet-based uses which cannot easily be confined to national territories.  It will also permit this particular category of European cultural work to be seen by a worldwide audience.

In our view the nature of works embraced by the Directive should be wide.  We are pleased that during the legislative process its scope has been enlarged to embrace works in varying media, whichever kind of institution happens to have collected them; and now includes (under certain conditions) works which have not been published – a provision which is specially important for archives. We hope for later enlargement of scope to include, for example, stand-alone photographs and other artistic works.

Potential limitations of the Directive

Regarding the potential uses of the Directive, we observe some significant limitations which seem inconsistent with the references in its recitals to the desirability of mass digitisation.

One such limitation is the financial uncertainty which accompanies the legal certainty.  In the Commission’s original proposal, nothing was to be paid by a cultural institution for the use of an orphan work, unless an untraced rightholder should appear to claim his or her rights; and then any payment would be in respect of future uses only (if any) of the work.  But in the Directive’s final form, such a rightholder is entitled to compensation for any use made of the work before he or she reappears.  This doubtful situation will discourage public institutions wishing to digitise their collections, even if the assessment of the level of compensation  ‘takes into account’ the cultural purpose of the use.

The second limitation is practical.  As was clearly pointed out in the 2011 “New Renaissance’ report of the Comité des Sages, the European Commission has recognised that ‘The cost of digitising the whole of Europe’s cultural heritage is high and cannot be covered by public funding alone.’ (EC Recommendation 2011/711/EU, para 9)  Benefits clearly lie in attracting private funding to the digitisation of orphan works.  Although the Directive on the one hand (Article 6.3) attempts to safeguard the freedom of contract of public institutions so that they can establish partnerships with commercial bodies, on the other hand (Recital 18) it restricts this freedom by forbidding any rights to commercial partners. In effect the only permitted roles for a commercial body are pro bono sponsorship or outright donation of funds. Such charitable giving is not normally the subject of a contract and it seems that the European institutions of government have misunderstood both the essential nature, and the economic importance, of true contractual collaboration between public institutions and businesses.

The very detailed requirements regarding the diligent searches necessary to determine orphan work status include diligently searching for each and every work embedded in the work, e.g. illustrations in books.  Nearly half of all published books contain illustrations, whose creators are often unacknowledged, and are rarely recorded as co-authors.  Thus diligent searching for them cannot be achieved by automated procedures (such as ARROW). The effect of this is that the directive cannot be applied to mass or large-scale digitisation of Europe’s cultural and educational heritage.

A further practical difficulty arises in the detailed requirements for record-keeping.  We fully agree with a requirement for cultural institutions to keep proper records of their diligent searches for rightholders.  But the Directive goes beyond that, insisting that the results of such searches be provided to national agencies who will then transmit all information to a European agency (the Office for Harmonisation in the Internal Market) for inclusion in a single publicly accessible online database.  Public institutions have long been engaged in the construction and maintenance of very large descriptive databases.  We think the Directive’s provisions are too detailed, over-elaborate, and very unlikely to be capable of useful implementation, without significant expense to the taxpayers of Europe.  A European-wide single database of supposed orphan works might be a valid aim: and we believe that, without reducing the requirement for institutional record-keeping, the Directive should reduce its requirements for the ‘single-point’ Europe-wide database to a simple list of works declared orphan, using straightforward catalogue-style data.

We should like to stress some additional legalistic points.  Firstly we disapprove of the arbitrary limits set in Article 6.1(b) to the permitted uses of reproductions of orphan works: it would have been more ‘future-proof’ not to specify precise uses within the public interest mission of institutions. Secondly, we cannot understand why the safeguards, provided in the Recitals, to the exceptions to copyright granted by Directive 2001/29/EC have not been wholly incorporated in Article 8 of the Orphan Works Directive where they properly belong (Continued application of other legal provisions). Thirdly, we regret that in cases where Member States allow the licensed use of orphan works at a national level, the Orphan Works Directive does not provide for mutual recognition of licensed orphan works.  And finally, the restriction of scope to works first published in a Member State will cause ambiguities and problems in dealing with works issued by European publishing houses that have worldwide operations.

Conclusions

Overall the likely result is a significant reduction in the potential quantity of content from Europe’s great collections being made available on-line.

We therefore look forward to the achievement of the promise in the Recital [Recital 3a] which refers to the Memorandum of Understanding (20 September 2011) between associations of libraries, authors, publishers and collecting societies. That mechanism is a promising way forward for mass or large-scale digitisation and all the cultural and educational benefits it will bring  —  but we point out that it will (at a minimum) require legislative action by the European Union to secure the cross-border application that is essential in the Single Market.  We urge the European institutions of government to legislate to bring this about.