COMMUNIA’s 2012 analysis of the directive showed that it was bound to be a train wreck. A preliminary comparative study of the situation in the UK, the Netherlands, and Italy undertaken by the EnDOW project reveals that the national implementations of the directive across Europe do not provide the much needed solution for the problem of orphan works.

Under the directive, cultural heritage institutions are allowed to publish works online for viewing (not re-use) after a ‘due diligence search’ has been performed, recorded, and submitted to the orphan works database at OHIM. Works that have been registered in this database can then be digitized and made available online under an exception to copyright. So far the project only published its initial results, but we can already see that this piece of legislation will most likely not contribute to large-scale use of orphan works by Europe’s Libraries, Museums & Archives.

The main reason for this is that the diligent search requirements established by the directive have been implemented by member states in such a way that the cost of undertaking a diligent search is prohibitive. The study collected over 210 sources, databases, and registers that need be checked in diligent searches in the UK alone. Researchers from Italy found 357 possible databases and registers. Of the 87 identified sources in the Netherlands, 40 were not freely accessible, and 36 of these required personal contact or a physical visit to an institute. Since the legislation requires cultural heritage institutions to be diligent, they need to check each and every source to be covered by the limited exception provided by the directive.

These results illustrate that the EU approach to orphan works is unreasonably complex and won’t adequately address the problem it’s trying to fix. This is further shown in the actual number of orphan works available through the OHIM Orphan Works Database, which currently only shows 1,435 registered works. More than half of them are in the collection of the Dutch EYE Film Institute (which has worked on rights clearance for these works since at least 2008).

The preliminary results of EnDOW provide evidence that the European Union has failed in this attempt to provide much needed digital access to Europe’s cultural heritage. Given that the Orphan Works Directive does not help with mass digitisation projects, this means that there is a continued need to provide legal mechanisms that allow cultural heritage institutions to make works in their collection available online.

Note: This contribution has been written by Maarten Zeinstra. Maarten is technical advisor to EnDOW. The ideas expressed in this post should not be attributed to EnDOW.

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In practice, however, determining whether a work has passed into the public domain can prove very difficult. This is especially true when attempting to determine the public domain status of content in multiple jurisdictions. As part of the EuropeanaConnect project, Knowledgeland and the Institute for Information Law at the University of Amsterdam have developed public domain calculators to determine whether a certain work or other subject matter vested with copyright or neighbouring rights (related rights) has fallen into the public domain. These public domain calculators have been developed for 30 countries (the European Union plus Switzerland, Iceland & Norway) and are available at www.outofcopyright.eu.

Users can use the calculators (and the underlying research published at outofcopyright.eu) to determine the copyright status of works in all these countries. This is the first time that this question has been structurally researched across all European jurisdictions.

The results of this research of national copyright laws show a complex semi-harmonized field of legislation across Europe that makes it unnecessarily difficult to unlock the cultural, social, and economic potential of works in the public domain. Identification of works as being in the public domain needs be made easier and less resource consuming by simplifying and harmonizing rules of copyright duration and territoriality.

Outofcopyright continues to adjust and refine its calculators. It is also researching how to make calculation possible using large datasets like bibliographica, DBPedia, and the Europeana datasets on cultural objects in Europe.

We encourage everyone interested in the public domain to try the calculators, comment on them and re-use the published research. All research and other material on Outofcopyright is available under the terms of a Creative Commons Attribution-ShareAlike license and the software powering the calculators can be reused under the terms of the EUPL license.

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