Magazine article Information Today

Europe Works on Solution to Embrace Cultural Orphans

Magazine article Information Today

Europe Works on Solution to Embrace Cultural Orphans

Article excerpt

There are few more chilling phrases in the English language than "European Union (EU) directive." Nevertheless, directives have their uses, one of which may be how to deal with issues related to the digitization of orphan works.

The European Commission (EC) is slowly inching its way to a somewhat viable solution to this issue. I use the word "somewhat" advisedly as the road to a workable orphan rights process is likely to be strewn with obstacles.

In May, the EC set out a directive proposal designed to help appropriate cultural institutions digitize orphan works. Interested parties are responding to the proposal, and member states will eventually issue a directive that should be enacted, probably after some revisions (after all, this is the EU). This process is likely to take between 2 and 3 years.


The EC proposal currently rests on three pillars: 1) how to identify orphan works, 2) the status of a work if a diligent search fails to find the copyright holder, and 3) the uses for orphan works. This should help in building a legal framework that gives the cultural institutions that are digitizing orphan works some protection if they face claims of copyright infringement.

A Solution to the Problem

LIBER (the Association of European Research Libraries) should have sent its comments on the proposal to the EC by now. Executive director Wouter Schallier says that it "does not offer a solution on a large scale. We cannot tackle the problem of orphan works without a solution. Now, for every single work, we have to investigate their background and have reasonable access to checking for copyright."

Schallier says he thinks the proposed directive will change substantially. "It's not on a large enough scale," he says. "We prefer a large scale solution based on collective licensing. We should make an agreement with rights holders collectively not individually and not for every work. We can then work in a fast and efficient way."

The London-based Open Rights Group (ORG), which campaigns for freedom of expression on the internet, is another body that plans to comment. Campaigner Peter Bradwell says the proposal "gives us a direction as at last we're on the road to finding a limited solution. We give it five out of 10 as it excludes sound recordings and photos and only focuses on cultural institutions."

ORG is submitting comments on the EC proposal, especially on what makes a diligent search. "The definition of that will be a key component," says Bradwell. Schallier estimates that it takes about a half day for one person to conduct a diligent search for one of the estimated 3 million orphan books. This amounts to about 13% of pre-1970 information about rightsholders that is not stored in databases, so automated search is not possible.

Copyright law specialist Alastair Shaw, a partner at international law firm Hogan Lovells, says one-stop checks on the rights status of orphan works would "represent a huge plus for the institutions affected as well as for researchers and members of the public more generally."

However, he says there are "at least two drawbacks" to the proposal. The first is that only works published in the EU would be covered by the proposed scheme, and second, there seems to be no part of the EC's proposal that "deals with how one goes about ascertaining the country of first publication with certainty."

Shaw sees another major obstacle emanating from the Tower of Babel created by the EU's multilingual nature: The EC and European Parliament will have to decide how language and translation issues will be dealt with. …

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