The European Commission has published its promised Proposal for a Directive on certain permitted uses of orphan works. I’m not sure that it was generally anticipated that it would create a new copyright exception, but it does. It proposes to permit digitisation and online dissemination of orphan material, after a diligent search, by publicly accessible libraries, educational establishments or museums, as well as archives, film heritage institutions and public service broadcasters, when fulfilling their public interest missions of preservation, restoration and provision of cultural and educational access to the works contained in their collections.
Member States may also permit the institutions to make uses of the material which go beyond the public interest mission, but if so, remuneration will be payable to the right holder if he or she comes forward to claim ownership at a later stage. Monies earned from “non-public interest mission” uses must be retained by the institutions, and if unclaimed after a certain period, should be used to enhance the development of rights management information sources.
The works to which the proposal applies are literary, cinematographic, and audiovisual works in the collections of the relevant institutions, when the author of the the work is unknown or cannot be located. In the case of broadcasting organisations the works must have been produced prior to 31st December 2002, and audio works are included. Visual works are omitted from the proposal, except to the extent that they are incorporated in an affected work.
The “diligent search” is to involve consulting identified sources of information, to be determined by each Member State. The search need only be conducted in the Member State of first publication or broadcast, and the work may then be regarded as orphan in all Member States. The institutions will be required to keep records of searches and to make the results publicly accessible.
The proposal addresses only part of the orphan works dilemma. It aims to release cultural material that the European Commission is so anxious to see made available, in particular through its flagship portal EUROPEANNA. However, it does not enable the use of orphan material by parties other than the designated institutions, and no plan for licensing (such as the Hargreaves proposal to use extended collective licensing for the purpose) is proposed. While projects such as ARROW, for which Digital Agenda Commissioner Neelie Kroes sees an ambitious future, will help to identify ownership of rights, there is still a legal gap to be bridged to provide a licensing system for orphan works.
The proposal is however just one part of a two-pronged approach on the part of the Commission to unlock access to unavailable material. The second part, as described in the EU IP Strategy, also published today, is the promotion of collective licensing schemes for works that are still in copyright, but “out of commerce”, i.e. not commercially available. It remains to be seen what further solutions will emerge via that route.
The cultural institutions who will benefit from this will be delighted, because it will solve an intractable problem for them. There is bound to be some concern however, including on the part of the institutions, that the solution proposed means that works which are without parent will have no one to look out for them once they are posted on the internet.
