ORPHAN WORKS – Europe legislates while the US litigates.
In an interesting counterpoint, the last month has seen the Orphan Works Directive reach the European statute book, while, in the US, the publishers jumped ship on the marathon Google books lawsuit. As the Directive was originally conceived as a response to the Google book threat, the timing was apt. The European solution is however a conservative one, narrowly focused on the use of orphan material by cultural archives. In the US, a broader outcome is possible via the courts. The Google books litigation was effectively acting as a legal bulwark against free use of orphan works by Google. The litigation is not at an end but the author co-plaintiffs, who appear to have been taken by surprise by the settlement, will have to reassess their position.
If this were not news enough, the decision by US District Court Judge Harold Baer in the Hathi Trust case came on October 12th. This was an infringement action by the Authors Guild and other author groups arising out of a mass book digitsation project conducted by five major universities in conjunction with Google. The court found that the activities of the Trust in collaborating with Google to produce digital copies of books and to make them available for full text searching, for preservation and for access by print-disabled persons fell within the contours of the fair use defence. While the uses in this instance are limited and carried out by a by a non-profit entity, it will provide yet more traction for the Google book project. There was an orphan works dimension which added impetus to the litigation. Part of the Hathi project was an orphan works database. Within two days of the release of the database in 2011, the Authors Guild had found that a substantial number of the works classified as “orphan” were no such thing, but books whose right holders could easily be located. The Trust was forced to suspend access to the database. To the dissatisfaction of the Authors Guild, Judge Baer declined to address claims relating to the database, in view of the suspension of access.
So, while the contrast between the US and European systems is again evident, with the US courts having the capacity to shape the contours of copyright law by interpreting the fair use defence, there may be a legislative solution to the orphan works dilemma in that jurisdiction too. Judge Chin, in rejecting the earlier Google book settlement in 2011, had certainly made it clear that, in his view, the orphan works question was a matter for the legislature. The US Copyright Office (whose role includes advising Congress on legislative measures) is currently conducting a consultation on what legislative, regulatory or voluntary solutions to the orphan works problem deserve deliberation at this time.
Here in Ireland we will now have two years to implement the Directive. In outline:
• The Directive affects orphan literary material, film and phonograms in the collections of a range of publicly-accessible cultural institutions, film and audio heritage institutions and public service broadcasting organisations. It also apples to works (such as visual works) embedded in these works.
• A work will be regarded as orphan if the right holder(s) cannot be identified or located.
• Subject to the conduct of a diligent search in specified sources to establish that a work is truly orphan, the beneficiary institutions may digitise for curatorial purposes and to make works available online, provided they do so to achieve aims related to their public interest mission (in particular preservation, restoration and the provision of cultural and educational access to their collections). The institutions may generate revenue from such uses but only to cover the costs of digitisation and making available online.
• Once a work is determined to be orphan in one Member State, it may be treated as orphan throughout the EU.
• Records must be kept of the searches conducted and the uses made of the works. Member States must ensure that this information is made available to the “competent national authority” and logged in a new database of orphan works to be established at the EU Office for Harmonisation of the Internal Market (OHIM).
• An author may come forward at any stage and put an end to the orphan status of the work. In that event “fair compensation” must be paid for uses made of the work.
The Directive explicitly creates a new exception to copyright, adding to existing exceptions in the Information Society (or “Copyright”) Directive. It leaves a number of issues to be fleshed-out in national legislation, and decisions to be made (such as the identity of the “competent national authority”).
While the solution is a narrow one, in that it does not address commercial uses of orphan material and it applies to a limited range of institutions, it has to be seen alongside a couple of other developments designed to improve access to otherwise unusable works. The ARROW project, an EU-funded consortium of stakeholders, is a vast database project designed to facilitate identification of literary right holders. In addition, a Memorandum of Understanding concluded in September 2011 between representatives of libraries, authors, publishers and collecting societies, witnessed by the European Commission, is designed to promote voluntary agreements enabling the use of “out of commerce” literary works.
The UK has been conducting its own examination of solutions to the orphan works problem, in pursuit of aims identified in the 2011 Hargreaves Report. A much broader solution is under consideration there, involving licensing of orphan material through the proposed Copyright Hub – the controversial Digital Copyright Exchange. Would Ireland follow suit? The Consultation Paper issued by the Copyright Review Committee earlier this year proposes an Irish Digital Copyright Exchange, to be established by a cross-stakeholder Copyright Council. That particular proposal seems unrealistic, but it would certainly not be impossible to devise a system of licensing of orphan material that might work in an Irish context.
