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.

The post Research: Orphan Works Directive does not work for mass digitisation appeared first on COMMUNIA Association.

Last week, the European Parliament approved the draft Directive on certain permitted uses of orphan works. The approval of the Council of Ministers is expected to occur shortly.

This is big news indeed, for it’s the first draft directive in the area of copyright law to make it this far in more than 10 years. It’s been commented and reported by many.

The proposed directive is striking in many respects. Most prominent is the virtually unanimous opinion that the directive ‘is a step in the right direction’, but that it ‘will not facilitate nor promote mass digitization and large-scale preservation of Europe’s vast cultural heritage’. This conjures up the image of the elephant giving birth to a mouse.

The text of the proposed directive went through several iterations before reaching its current stage, including the last amendments brought by the Parliament to the compromise text of last July. Some of the sharp edges have been softened in response to criticism, but the main point of contention remains: how can a cultural heritage institution with millions of items in its collection proceed with digitization if it must conduct prior to use a diligent search for each item? Since this train could not be stopped, cultural heritage institutions are now looking in the direction of their own lawmakers and partner-stakeholders to determine what constitutes a ‘diligent search’ at national level, following the criteria they may establish pursuant to article 3(2) of the directive.

The fair compensation to the reappearing rights holder

Another issue left at the discretion of the individual Member States concerns the determination of the circumstances under which the payment of a fair compensation to the rights holders that put an end to the orphan status of a work is to be organised. Article 6 paragraph 5 of the proposed directive states that the ‘level of the compensation shall be determined, within the limits imposed by Union law, by the law of the Member State in which the organisation which uses the orphan work in question is established’. Recital 18 specifies that ‘for the purposes of determining the possible level of fair compensation, due account should be taken, inter alia, of Member States’ cultural promotion objectives, of the non-commercial nature of the use made by the organisations in question in order to achieve aims related to their public-interest missions, such as promoting learning and disseminating culture, and of the possible harm to rights holders’. In practice, the combination of all these factors could justify the payment of a very low compensation, one that would still qualify as fair.

What the proposed directive omits to mention is how the compensation for past use based on mutual recognition of orphan works status (art. 4) should be regulated. Since the proposed directive emphasises that a work or phonogram so recognised may ‘be used and accessed in accordance with this Directive in all Member States’, does it give a right to fair compensation to the reappearing rights holder in every single Member State? A prudent legislator would, when implementing this provision at national level, make necessary arrangements to avoid that the budgets of its cultural heritage institutions be plundered by reappearing foreign rights holders. The determination of what is ‘fair compensation’ in this case could be linked – in addition to the factors enumarated in Recital 18 – to the total amount of downloads of the work/phonogram in question (actual use) in the Member State. The rights holder of a more popular work/phonogram would therefore receive a higher compensation than one whose work/phonogram hardly was consulted. This element would actually be connected to the criterion of potential ‘harm’ to the interests of the rights holder.

The registry of search records and orphan status

A (somewhat surprising) novelty in the compromise text as approved by the Parliament is the appointment of the Office for Harmonisation in the Internal Market (OHIM) as the publicly accessible online database entrusted with the collection and maintenance of the diligent search records and outcomes for all works declared orphan. Of course, the OHIM is among the few pan-European institutions dealing with intellectual property rights, namely trademarks and designs (the other organization in the field would have been the Commmunity Plant Variety Office) and it certainly has experience with holding registries. But the OHIM has no experience or affinity with copyright protected works or phonograms.

Dealing with trademark and design registration is likely very different from dealing with research records and metadata reflecting the orphan status of works. Moreover, the OHIM is not the first place that comes to mind to look for information on orphan works. Consequently, it could be overlooked by all those who are not familiar with the specifics of this arrangement, e.g. the general public. Wouldn’t it have been more logical to appoint an organisation like Europeana, which is mentioned in Recital 1 of the proposed directive as the main beneficiary of the provisions contained therein.

The ‘legal certainty’ ‘without prejudice to’…

The most striking aspect of the proposed directive is that in its effort to ensure ‘legal certainty with respect to the use of orphan works’ (Recital 25), the application of the provisions is without prejudice to the following:

1. the Memorandum of Understanding on key principles on the digitisation and making available of out-of-commerce works, signed on 20 September 2011 (Recital 4);
2. the arrangements in the Member States concerning the management of rights such as extended collective licences, legal presumptions of representatino or transfer, collective management or similar arrangements or a combination of them, including for mass digitisation (Recital 24);
3. any arrangements concerning the management of rights at national level (art. 1(5));
4. national provisions on anonymous or pseudonymous works (art. 2(5));
5. provisions concerning, in particular, patent rights, trade marks, design rights, utility models, the topographies of semi-conductor products, type faces, conditional access, access to cable of broadcasting services, the protection of national treasures, legal deposit requirements, laws on restrictive practices and unfair competition, trade secrets, security, confidentiality, data protection and privacy, access to public documents, the law of contract, and rules on the freedom of the press and freedom of expression in the media (art. 7);
6. any acts concluded and rights acquired before (a certain date) (art. 8(2));

In addition to all these rules or arrangements that may be given precedence over those of the proposed directive, whenever dealing with musical works, a cultural heritage institution will have to take account of the future rules deriving from the proposed directive on collective rights management and multi-territorial licensing of rights in musical works for online uses.

All and all, not an easy task ahead for the main beneficiaries the provisions of the proposed directive on certain permitted uses of orphan works… Cultural heritage institutions may choose instead to stick to the ‘contractual method’… which may not bring much freedom to European orphans after all.

The post Are European orphans about to be freed? appeared first on COMMUNIA Association.

The Government, following the Hargreaves Review, made a number of proposals to make copyright licensing more efficient and remove unnecessary barriers to the legitimate use of works while preserving the interests of right holders. These include schemes to allow use of ‘orphan’ works whose copyright holder cannot be found or is unknown, voluntary extended collective licensing, and introducing minimum standards of conduct for collecting societies, underpinned by a backstop power to impose a statutory code of conduct on a collecting society where required.

These measures bring some currently unlawful or unlicensed activities within the scope of legal activity, allowing licensing to occur and thus benefiting right holders and licensees alike. They have potential to cut costs and improve compliance with copyright law, and to improve confidence in the UK copyright system.(p.7)

In the light of the discussion about the ‘Orphan works’ directive the first two of these should be of interest beyond the borders of the Island Kingdom.

Hostage works

The section on ‘improvements to copyright licensing’ is a bit misleadingly titled since these improvements are aimed exclusively at finding a solution for the hostage works problem. The policy statement outlines the problem in such a clear cut fashion that it is worth quoting at length:

The Government’s position, following the Hargreaves Review, is that it benefits no-one to have a wealth of copyright works be entirely unusable under any circumstances because the owner of one or more rights in the work cannot be contacted. This is not simply a cultural issue; it is also a very real economic issue that potentially valuable intangible assets are not being used, and an issue of respect for copyright if they are being used unlawfully. The Government therefore proposed an orphan works scheme that allows for both commercial and cultural uses of orphan works, subject to satisfactory safeguards for the interests of both owners of ‘orphan rights’ and rights holders who could potentially suffer from unfair competition from an orphan works scheme. (p.7)

This analysis of the problem is spot on and it is nice to see that the UK government explicitly recognizes the economic aspects of the hostage works problem. The solution outlined by the policy paper is not entirely surprising either. The UK government follows the diligent search approach that also underpins the EU directive. While the policy statement is not sufficiently detailed to fully evaluate these plans, a number of positive aspects stand out when comparing the proposed approach to the compromise text of the EU directive.

From the text of the UK policy statement it appears that the government intends to apply a less restrictive definition of diligence when it comes to searches that need to be carried out by prospective rights holders. It intends to balance this with the obligation to pay license fees for uses of orphan works and to hold these fees in escrow for a certain period of time on behalf of possible reappearing rights holders (the “Awaiting Claim” approach):

• Diligent search before something can be used as an orphan work is key to the scheme. The Government believes that it is important to strike the right balance between a relaxed standard of diligence and for an “awaiting claim” approach, as against ensuring that absent rights owners’ needs are protected. The Government is mindful of the need to ensure the process is sufficiently straightforward to be useful to potential users. The authorising body will verify the diligence of the searches.
• Commercial and non-commercial uses of orphan works in the UK will both be permitted, both to maximise the economic potential of proposals and because making a firm distinction between the two is difficult in practice.
• This permission should come at an appropriate price – a market rate, to the extent that one can be established (though the difficulties that may attend establishing that, for example in respect of works not created for publication that are in museums’ collections, are noted).
• This price should be payable in advance (or at agreed times if there is a royalty element) and set aside for any rights holders who may still appear even after a diligent search has not found them.(p.8)

As long as the standards for a diligent search have not been determined and as long as the licensing fees have not been established (which can be notoriously difficult as pointed out by Hugenholtz and Korteweg in this study) it is difficult to say what the effect of this will be on mass digitization projects and use of hostage works by memory institutions in general. In any case this approach should create much more certainty and predictability than the approach chosen by the EU. In addition this approach also enables commercial uses of hostage works—a clear advantage over the EU approach.

How this approach relates to another important criticism raised by COMMUNIA—the fact that there is only a very limited list of potential beneficiaries who will be allowed to use hostage works under the EU directive—is not entirely clear from the UK policy statement. At first reading it appears that use by parties other than existing memory institutions might be possible, but we will need to wait for further details later in the legislative process. Needless to say we would urge the UK government to explicitly endorse use by a broader set of beneficiaries.

All in all these are substantial improvements over the proposed EU directive. The UK government recognizes this by making it explicit that the scope of uses enabled by their proposal is wider than the one of the EU directive (although the part about the exception is a bit confusing since the EU directive requires implementation in the form of an exception):

The scheme will not take the form of an exception to copyright, but will be based on authorisation by an independent body, i.e. not the same body which wishes to exploit the orphan works.

The UK scheme will be compatible with the emerging European system, as set out in the draft Directive, but broader in applicability (in particular allowing commercial use in the UK) to maximise potential benefits to the UK. (p.9)

It’s unfortunate that these extra possibilities and the less stringent approach will most likely not be implemented at the EU level, but at least the UK proposal points to an approach wherein more progressive member states will provide additional room for users of orphan works within their own territorial boundaries. This of course will lead to further splintering of EU copyright legislation which will make it more difficult for the EU to finally create a single digital market (one could argue that this means that with the orphan works directive the Commission has not only failed to address the issue it wanted to address, but that it has also shot itself in the foot doing so).

Extended Collective Licensing

Extended Collective licensing (ECL) is often seen as a different approach to the hostage works problem and the larger copyright issues presented by mass digitization projects. The European Commission has largely sidelined this approach with the orphan works directive (although Article 1.2c of the proposed directive ensures that the two approaches can coexist). Many memory institutions view ECL as a very promising approach and therefore it is good to see that the UK government is proposing to introduce legislation that will allow ECL arrangements on a voluntary level. Having this approach available alongside the diligent search model provides memory institutions and rights holders additional options to manage large scale digitization projects and to operate in the digital environment.

The post UK government proposal to modernize copyright underlines failure of EU approach to hostage works appeared first on COMMUNIA Association.

Given all of the above, it is unfortunate that the text also is a legislative train wreck that fails to make any substantial improvements to the situation in which memory institutions engaged in digitization efforts find themselves. The compromise text of the proposed directive (‘compromise’ refers to a compromise between the three EU legislative bodies the Commission, the Council and the Parliament, not a compromise between the many stakeholders affected by this legislation) has essentially abandoned the initial purpose of the proposed directive. That purpose was to ensure that the public gains access to those works that are held hostage by the copyright legislation that has failed to keep up with social and technological change. Instead, the proposed directive has morphed into a twisted attempt to protect the ideology underpinning 20th century copyright legislation against the effects of the problems created by the rigidity of this very ideology.The compromise text reaffirms the principle that no matter what situation we find ourselves in, we need to be guided by the ideology that it is the exclusive right of authors to determine what society can or cannot do with the bits and pieces of cultural production that make up our shared culture. The proposed orphan works directive re-affirms this principle even in the situation where the limitation of this approach is most visible:

No one benefits from the fact that works protected by copyright for which a rights holder cannot be located cannot legally be used: This is true for the authors who have created these works, the memory institutions that have invested considerable resources into collecting and preserving these works, and the general public that is funding these efforts and wants access to these works. Legislation that would enable memory institutions to make use of these works without having to jump through complex hoops for the simple sake of pledging allegiance to the principles of 20th century copyright law would benefit all of these stakeholders: authors would see increased access to their works (and would be provided with the ability to re-claim control over their works if they so desire), memory institutions would be free to focus their resources on their core mission of providing public access to culture, and the public would have access to a much wider spectrum of works and could build upon them.

Looking at the compromise proposal, none of this is very likely to happen on a substantial scale.

There are several positive aspects of the compromise proposal. Looking back at the COMMUNIA policy paper that was published in reaction to the original Commission proposal, and at our first guess on the compromise text, we can conclude that the co-legislators have agreed on a text that solves most of the technical problems that we pointed out: the directive now also applies to unpublished works, it can be applied to ‘partial orphans’, and it no longer ties the use of specific types of works to specific types of memory organizations.

Also on the plus-side is the fact that in order to allow memory institutions to use orphan works, the directive creates a new Europe-wide exception to copyright. This approach is interesting insofar as it hints to a new thinking about copyright policy making in the EU. In doing so, it could free itself from the restrictions derived from the limited list of exceptions to copyright that was introduced by the 2001 copyright directive.

But this is where the positive parts of the compromise end. At the core of the compromise are four substantial shortcomings that – taken together – render the directive effectively useless. These shortcomings affect the way hostage works are identified as being ‘orphan’ works, the way reappearing rights holders have to be compensated, the way these works can be used, and the group of beneficiaries that can actually use them.

1. With regard to the identification of ‘orphan works’, the directive requires that ‘a diligent search is carried out in good faith for each work‘ by the memory organization attempting to use such a work. Memory organizations have repeatedly pointed out that conducting a diligent search for each work makes making available ‘orphans‘ prohibitively expensive and will likely mean that the directive will not be used in mass digitization projects.Regardless of these complaints by the very organizations that are the intended beneficiaries of the directive, this issue has not only failed to be addressed, but has even been made even worse. The compromise text adds the requirement that the diligent search is carried out ‘in good faith‘. This language introduces a second layer to the legal test that an organization making use of the directive could potentially fail to pass.

   This has the effect of both increasing the risk for memory institutions and also insulting them by insinuating that they exist to purposely harm rights holders (The same is true for the newly inserted recital 16a that reminds the memory institutions of the obvious fact that they risk remedial action under copyright if they wrongfully identify a work as being ‘orphan’ work).

   Therefore, instead of addressing the very real concerns over the usefulness of the directive, the compromise text creates even more legal uncertainty for those memory institutions who are intended as the beneficiaries of the directive.

2. This uncertainty is made worse by the introduction of a requirement to compensate rights holders for past uses of their works if the rights holders reappear and claim their works (thus ending the works’ ‘orphan’ status). The initial Commission proposal did not contain such a requirement (it only stated that reappearing rights holders have a right of compensation for future uses), which provided reduced financial risks for organizations making available ‘orphan‘ works over the current status quo.The introduction of the requirement for retroactive compensation means that even after an organization has invested into a diligent search, it continues to face financial risks, thus reducing the appeal of the directive for its intended beneficiaries even further.
3. Third, the compromise text of the directive does not change the limited list of permitted uses of the Commission proposal. According to the directive, memory institutions may use orphans ‘by making them available‘ and ‘by acts of reproduction […] for the purposes of digitization, making available, indexing, cataloging, preservation or restoration‘.This list of allowed uses is problematic in two ways. First, it refers to uses that are not covered by the copyright directive (cataloging and indexing), which can be seen as a subtle attempt to expand the reach of copyright protection. Second, a limited list of uses is fundamentally shortsighted in a situation of rapid technological change. In order to provide some room for memory organizations to adapt to new technologies, the directive should allow the beneficiaries to use ‘orphan’ works for the purpose of carrying out their public interest mission without creating an inherently incomplete list of only specifically-sanctioned uses at the time of publication of the directive.
4. Finally, the compromise text contains the same limited list of beneficiaries as in the Commission proposal: The directive only allows uses of ‘orphan‘ works by ‘publicly accessible libraries, educational establishments or museums, as well as archives, film or audio heritage institutions and public service broadcasting organizations‘ in the context of their public interest missions. As we have argued in our policy paper, this is far too limited in the context of how cultural works are currently being accessed:
   

   [The beneficiaries named in the directive] are not the only sources of access to our shared culture and heritage. It is COMMUNIA’s position that the group of users who may benefit from the orphan works directive should be widened potentially to include everyone. The targeted group of end users should include individual end users and non-profit initiatives like Wikipedia, which would currently not benefit from the proposed directive. […]

   In this regard, the proposed directive falls short of recognizing the changes of how we access and deal with cultural heritage. Europeans are increasingly accessing and using cultural heritage information without mediation by the formal institutions that the proposed directive targets. This development will likely continue in the future and any legislative proposal that does not take these changing realities into account will only worsen the situation by cementing the status quo-ante.

   In addition, this limitation also means that it will be very difficult for memory organizations to form public-private partnerships (PPPs) to digitize ‘orphan‘ works. The main incentive for private parties engaging in PPPs with memory organizations is that they can make the digitized works available through their own services. As long as commercial partners are not entitled to use ‘orphan‘ works, such partnerships will need to steer around digitizing ‘orphan‘ works.

All of this means that the compromise proposal will do very little to address the problem it is intended to solve. The memory institutions made this clear when Informations sans Frontières listed 6 problems that needed to be fixed before they could recommend approving the directive. These include three of the four problems outlined above which are still present in the compromise text. Given this the memory organizations would be well advised to make it clear that the compromise does not help them in a significant way.

However, it is not only the memory organizations who should be concerned. This piece of legislation is also a defeat for the Commission. In their quest to adapt copyright to the digital age, they have – under substantial pressure from rights holders – failed to arrive at a legislative intervention that delivers on this goal. At the same time when the Commission is aggressively pushing for an open data strategy that calls open data ‘the new gold that needs to be made available for re-use by anyone‘, it has produced a directive that effectively keeps large parts of 20th century cultural data locked away in the archives and basements of memory institutions.

The orphan works directive presented an important opportunity to broaden the Public Domain by including those works that have been abandoned by their rights holders. What we have received instead is a directive reaffirming the primacy of copyright over the interests of the public and of society at large.

Ultimately, the limitations of the compromise text points us to the need for real reform in the way society grants protection to the creators of cultural and scientific works. We should only award exclusive rights to those creators who want them and who will use them responsibly by not abandoning their works. This can be achieved in a relatively straightforward way by requiring that creators register those works that they want to have protected by exclusive rights and that they renew this registration periodically. Implementing this requires a willingness of all stakeholders to revisit the principles underpinning the current regime of copyright protection. Unfortunately, the ‘orphan‘ works compromise shows us that this willingness does not yet exist.

The post ‘Orphan works’ compromise fails to deliver appeared first on COMMUNIA Association.

Based upon the draft Directive on certain permitted uses of orphan works tabled by the Commission in 2011 (COM/2011/0289), about which COMMUNIA expressed some Policy Recommendations, the two European regulation bodies have come to an agreement. Although the deal is said to be ‘informal’ (it still has to get final approval from the Parliament’s Committee on Legal Affairs, Parliament as a whole and in the Council), it shows the ongoing efforts of the European regulator to move on with the ‘orphan works’ issue. The text of the agreement has not yet been made available. According to the press-release from the Parliament’s Committee on Legal Affairs:

“This legislation would allow everyone to access such “orphan works” and take forward the project of making Europe’s cultural heritage available online.”

It seems that the agreement would not bring major changes to the Commission’s proposal. This lets us think that our concerns about the shortage of the Directive are to remain, especially as regards its impact on the digital Public Domain. Nevertheless, a few elements unveiled by the press-release deserve some comments.

‘Orphan’ status granted after ‘diligent search’:

According to the Directive proposal, a work would be deemed to be ‘orphan’ if, after a ‘diligent’ search made in good faith, it was not possible to identify or locate the copyright holder. The Parliament and the Council concur with the Commission, without adding further precisions about the criteria to be applied to such a ‘diligent search’ process imposed to users.

COMMUNIA argued that the ‘diligent search’ process as proposed by the Commission was flawed and short-sighted. In the meanwhile, the Parliament and the Council seem not to have ceased the occasion to improve the criteria set forth by the legislation proposal, which do not enable full potential of ‘orphan works’ uses and fail to guarantee legal certainty for ‘orphan works’ users.

For ‘any audiovisual or printed material’…

The Parliament and the Council agreed on the categories of works being encompassed by the ‘orphan work’ status, while adding some elements to the Commission’s proposal. The press-release states that ‘orphan works’ status would cover:

“(…) any audiovisual or printed material, including a photograph or an illustration embedded in a book, published or broadcast in any EU country.”

Whereas photographs were surprisingly absent from the Commission’s draft (as it was already highlighted in our Policy Recommendations), their express inclusion as a category of works eligible for ‘orphan’ status would be an improvement.

… even unpublished:

As the EU Council had already opened the door to include some unpublished works into the scope of ‘orphan works’ – albeit rather timidly and not fully in line with COMMUNIA’s Policy Recommendations arguing for a clear inclusion of unpublished works (as ‘the orphan works problem is especially acute in respect of unpublished works’) – the message seems to be reasserted more strongly in the latest draft legislation document worded under the Danish Presidency. According to the press-release:

“[The ‘orphan’ status] would also apply to works not published but nonetheless made available by institutions, provided that they could reasonably assume that the right holder would not object to this act.”

Even if the inclusion of unpublished works is still not clear enough and does not fully cope with the ‘orphan works’ problem, the EU regulator seems to be ready to guide Member-States in this respect (contrary to the former Polish Presidency note leaving Member-States decide whether unpublished works could also be deemed as ‘orphan works’).

Securing the interests of public institutions:

The Parliament says to have secured provisions to make it safer and easier for public institutions such as museums and libraries to search for and use orphan works. These provisions would aim at limiting the risk from future copyright infringement claims (the press-release quotes the example of the Google Books project having been blocked in court).

When right-holders come forward to claim their rights on a work after it has been placed on line, the Parliament and the Council would like to limit the amount of money public institutions would have to pay to authors as compensation:

“Compensation would have to be calculated case by case, taking account of the actual damage done to the author’s interests and the fact that the use was non-commercial. This should ensure that compensation payments remain small.”

Such a wording would tend to place public institutions’ interest in front of those of authors in situations where the latter claim rights later in the process of ‘orphan works’ use. The Parliament and the Council say to have further agreed on a new provision allowing public institutions to generate some revenue from the use of ‘orphan works’ to pay search and digitisation costs.

However, we still don’t know the exact wording of these provisions and their genuine impact on ‘orphan works’ use for public institutions.

Lidia Geringer de Oedenberg (Polish MEP for the S&D), who is heading the negotiations on this legislation as Rapporteur in the Parliament, welcomed the deal as a: “first step towards harmonisation of copyright rules in the EU“. Although this assertion sounds rather sibylline in the context of an EU copyright regulation already containing several harmonization Directives, it reflects the high expectations the European regulator has about the legislation on ‘orphan works’ within the whole EU copyright legal system.

In the meantime, we are waiting for the consolidated version of the Directive to be formally released to further comment on it. More to come soon (probably this week).

The post ‘Orphan Works’: European Parliament and European Council Announce Agreement on Draft Legislation appeared first on COMMUNIA Association.

Loren states that the term, which was first introduced in 1999, overlooks the core of the problem:

These works are being held hostage by a set of rules that result in an inadvertent lock-up of the expression these works contain. (p.22)

In the context of hostage works, the incentive for creation functioned as intended: the work was created. But the incentive for distribution has actually backfired. Instead of a risk of underinvestment in distribution we have a manifestation of such underinvestment. Copyright protection is obstructing distribution, not enabling or facilitating it. This is a type of waste: copyright law is “inhibiting access . . . without any countervailing benefit.” In addressing the hostage work problem, we should be focused on a solution that reduces the waste by removing the barriers to non-owner distribution. (p.23)

Focussing on the hostage status of these works helps with devising a system that can deal with the manifest market failure that hostage works represent. While Pallas Loren’s paper discusses possible solutions against the backdrop of US copyright law, her arguments are surprisingly powerful in understanding the current discussion on the European Union level. As we have pointed out before, the current legislative discussion is likely to make the hostage works problem even worse. This is partly to blame on the framing of the problem as an ‘orphan works’ problem that results in a focus on re-uniting these works with their ‘parent-authors’ and protecting them against inappropriate exploitation.

In the second half of her paper, which proposes a solution to the problem, Loren suggests focusing on the role of access facilitators such as libraries, museums and archives (whom, in an somewhat questionable extension of the hostage works metaphor, she refers to as ‘special forces’) and their role in setting hostage works free:

The access facilitators are those entities that are interested in distributing copies of the orphan works themselves but fear the infringement liability for doing so. Libraries, archives, museums and other similarly focused entities see providing access to these works as helping to advance their core mission of spreading knowledge in their fields. (p.23)

[These] access facilitators really are the “special forces” that are freeing the hostages. This role will typically be played by libraries, museums, nonprofit educational institutions, archives, and public broadcasting entities, although my proposal is in no way limited to these entities. In addition to the public that will be obtaining access to a work previously held hostage by the rules of copyright, an important beneficiary of the actions of these special forces will be the derivative work creators who should be able to rely on the identification of works as hostage works and, particularly as time passes without a copyright owner surfacing, be willing to use such works. (p.25)

Loren argues that what is needed is a set of defined rules for access providers that engage in freeing hostage works that need to be coupled with reasonable incentives for the access providers to undertake this effort on behalf of the public at large:

Freedom for hostage works comes in the form of reliable information concerning the copyright status and the copyright owner of the work. Through the sharing of reliable information, the hostage works will be freed for exposure to interested audiences and potential users of such works. Existing databases can assist with the search for such information, but someone must invest resources in researching those databases, connecting the discovered information to a particular work, and disseminating the information discovered. Thus, creating incentives to produce and publicize this type of high quality information should be a prime focus of any approach to solving the “hostage work” problem. (p.26)

This approach sounds a lot like the approach proposed by the Europeana Commission in it’s original proposal for a directive on certain permitted uses of orphan works. As we have pointed out before the proposed directive has become watered down quite a bit especially where it comes to the incentives that encourage access providers to undertake this work. The initial proposal contained provisions that would have offered some form of immunity from legal and monetary liability to access providers that would follow a diligent search according to criteria defined by the directive. This closely mirrors the solution proposed by Loren:

I propose an immunity from monetary liability for entities that act as responsible “special forces” and free hostage works so long as the entity satisfies two criteria. First, the entity must not be negligent in designating a work as a hostage work or in its approach to correcting status information and removing digital access to a work inaccurately (albeit non-negligently) identified as a hostage. […] Second, in order to gain special forces immunity from monetary liability the entity should be required to provide an open access copy of the work with embedded hostage freeing information related to that work.(p.27)

This last part of her argument is really interesting and goes beyond what has been proposed so far. The open access requirement for freed hostage works not only prevents freed hostages from being monopolized by another entity, it also underlines the public service nature of the act of freeing such works:

The requirement of providing open access to the work is a way to ensure the public benefit in return for granting a reduction in liability. In a quid pro quo arrangement that is a familiar way to think about the exclusive rights granted by intellectual property protections, I suggest that the public benefit is best accomplished by a requirement to provide a open access copy of the work with attached information concerning the copyright and copyright owner status.(p.27)

The argument brought forward by Loren of linking open access versions together with the information gathered in the process of trying to identify the rights holders is not only essential to solving the hostage works problem, it also points to a new role for cultural heritage institutions in the digital environment:

The information that is gathered and disclosed by the special forces in connection with the open access copy must not be subject to claims of exclusivity. For example, that data should be released under express conditions of no assertion of ownership in that information. This type of metadata must be freely and widely available for re-use. One way to satisfy this important responsibility would be to employ the Creative Commons Zero Universal Public Domain Dedication, a legal tool developed to make data available without restrictions on re-use.

Requiring public disclosure of the hostage freeing information permits inspection by others, and may, in fact, lead to the identification of the copyright owner. If that occurs, that copyright owner should then be able to have the provenance information corrected and, if the owner desires, have that work removed from the open access repository. (p.35)

The required infrastructure for this is of course already in place. Over the last couple of years the European Commission has invested millions of Euros into Europeana, a platform that can provide access to open access copies of liberated hostage works as well as the related hostage freeing information.

The only piece of the puzzle outlined by Pallas Loren that is currently missing is the political will to enact legislation that is focussed on liberating the vast amounts of works held by publicly funded memory institutions that are currently held hostage by copyright. Unfortunately the current legislative proposals seem to be caught up in the ‘orphan works’ logic and primarily focus on re-uniting these works with their parent-authors. Pallas Loren’s paper is a powerful and well-argued reminder why this ‘solution’ will benefit no-one and how a real solution could look like.

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According the ISF there are 4 main issues with the Orphan Works directive in it’s current (23 March) form:

1. The provision to require remuneration for past use of an orphan work as a rights holder re-appears needs to be removed. It undermines the entire purpose of the directive which is to create certainty for users of orphan works (we have raised this point before)
2. The provision allowing commercial uses of orphan works (article 7 in the original proposal) needs to be restored in order to allow for public-private partnerships to fund digitization projects
3. The provisions on technical requirements for record keeping related to diligent searches carried out in order to identify orphan works should be made less technology-specific.
4. The ‘liability’ amendment that has been added as recital 16a needs to be removed as it increases legal uncertainty for users of orphan works and as such is counterproductive to the overall aim of the directive (facilitating the digitization of Europe’s cultural heritage).

This analysis provided by ISF is largely in line with the concerns raised by COMMUNIA in our policy paper on the proposed directive and later statements on this site. Overall Information Sans Frontières makes it clear that it considers the directive in its current form unable to achieve the objectives it is supposed to achieve. In an updated version of the position statement from 2 april the ISF concludes that:

… we hope that the high-lighted difficulties will be removed in forthcoming negotiations with the Commission and Council. If they are allowed to remain, the Directive will not achieve its purpose, according to the Commission’s IP strategy of promoting the digitisation and making available of the collections of European cultural institutions (p.13). We believe that the Directive will set damaging precedents, and will be of negligible use to our member institutions. As the intended beneficiaries of the Directive, we shall ask the Parliament to reject the Directive in plenary if these problems are not solved.

As we have mentioned here before it is alarming to see an organization representing the intended beneficiaries of the proposed directive reject it in its current form. This is more than understandable as the changes that have been introduced during the negotiations so far have turned a good but technically flawed instrument into an instrument that introduces additional uncertainties and restrictions for cultural heritage institutions that are already struggling to provide access to cultural records from much of the past century.

The post Information Sans Frontières: Orphan works directive in it’s current form creates more harm than good appeared first on COMMUNIA Association.

The Proposal for a Directive on certain permitted uses of orphan works, introduced in the European Parliament on 24 May 2011, has been following its merry way through the legislative meanders ever since. The debates around the text of the proposal are heating up right now, for the European Commission pushes for rapid adoption while stakeholders watch out against any measure possibly affecting their respective interests.

Already since the beginning of this year, the Danish Presidency has published two revised compromise proposals, one on 6 January and the second one on 10 February 2012. The last proposal was followed by a Presidency non-paper on a possible single database for orphan works for discussion at the Working Party on Intellectual Property (Copyright), held on 17 February 2012. The drafting suggestions made by the Belgian delegation have unfortunately not yet been made available.

The crux of the discussions revolves around the need under the Proposal for a directive for cultural heritage institutions to carry out a diligent search about the orphan status of a work and the extent of such an obligation. Cultural heritage institutions warn that the unhappy result of imposing such an obligation may be that large-scale digitization efforts will see no benefit, after the adoption of the Directive, over the situation they face now. The danger remains that the twentieth century will remain the unknown century for Europe’s children. Its culture will be inaccessible in digital format.

A realistic and practical approach about the kind of collection represented by orphan works is paramount. Examples are:

• Books discussing the chances of war, published 1910-1913
• Sound recordings of ordinary people, using ordinary speech, to illustrate regional dialects in Denmark
• Anonymous political pamphlets expressing dissident views under the Communist regime in Hungary

For each of these collections the commercial value of the rights is zero or nearly zero. Safeguards for rightholders of orphan works are required, but need to be proportionate to the kind of material in a collection.

A call has been made by cultural heritage institutions to the Council of Minsters’ working group for a more balanced and practical solution as follows:

• Diligent search, a valuable concept, must not necessarily apply to every work (including every embedded work), but must be proportionate to the collection being digitized
• Restrictions on commercial use must be sufficiently flexible to allow for commercial funding of digitization projects
• Requirements for recording diligent searches, and uses of orphan works, should not be over-specified in law
• If the use of an orphan work is permitted by the national licensing scheme of a Member State, the Directive should provide for the permission to extend to all Member States in that particular case. (Such a provision would not impose licensing solutions on all Member States. But it would avoid a fragmented Internal Market of mutually exclusive licensing arrangements.)

The Presidency non-paper of 14 February partly responds to these concerns by suggesting that a single database be set up following the ARROW model to convey information about which work is being used and by whom.

The question remains, however, whether the other concerns voiced by cultural heritage institutions regarding the extent and the cross-border validity of a diligent search will be addressed in the final text of the directive.

To be continued!

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Unpublished works

The first of the two questions addressed in the note is whether unpublished works should be covered by the directive. The COMMUNIA policy paper argued that they should be included as ‘the orphan works problem is especially acute in respect of unpublished works’ and it seems that this view is shared by a number of Member States (‘delegations’). According to the presidency note,

[s]ome delegations asked for the inclusion of unpublished works into the scope of the Directive. Other delegations had doubts whether this would be the right way forward.

the presidency note proposes

to reconcile these different views by providing for the possibility to extend the scope of the Directive to unpublished orphan works […] without putting an obligation on Member States that oppose such an approach. It also requires from Member States making use of such possibility to limit its application to works for which it is reasonable to consider that they are the “country of origin”.

In essence the presidency is proposing a compromise that lets member states decide if they want to include ‘their’ unpublished works or not. While this is certainly better then excluding unpublished works altogether, it further fragments an already flawed European attempt to provide a sensible answer to the orphan works problem.

Legal mechanisms for the use of orphan works

The second question addressed in the presidency note deals with “legal mechanisms for the use of orphan works”. The original presidency proposal included a mechanism based on the exceptions to the reproduction and making available rights provided for in Articles 2 and 3 of Directive 2001/29/EC.

According to note a number of Member States have argued for more flexibility in implementing the permitted uses of orphan works. The issue here seems to be to provide room for more far-reaching arrangements that not only cover orphan works but would also permit the use of orphan works as part of (extended collective) licensing arrangements. The note contains new language for Article 6 that seeks to provide member states more flexibility.

In this aspect the presidency note would enable development of alternative models for dealing with the problem posed by orphan works. This is in line with the position taken by COMMUNIA in it’s policy paper.

Two steps forward one step back

Unfortunately the presidency note also attempts to further strengthen the requirement ‘that a remuneration is due to rights holders that put an end to the orphan status of their works, including in the case of uses under the exception’ that was first introduced as part of the first presidency compromise proposal.

As COMMUNIA has argued in it’s policy paper this particular provision has the potential to undermine the entire purpose of the proposed orphan works directive as it ‘will create continued financial uncertainty for users of recognized orphan works’ and as a consequence ‘the directive would provide users of orphan works with very little practical benefits over the status quo’.

The post Two steps forward one step back: new presidency note on the proposed orphan works directive appeared first on COMMUNIA Association.

Information Sans Frontières is an alliance representing the institutions in the Member States addressed by the proposed Directive. We urge that the Directive should embrace unpublished as well as published works, and creative works in all media. We are unanimously of the view that the Directive is in danger of failing to achieve its policy objectives, in particular large-scale digitization projects. The Presidency compromise proposal has several inherent contradictions with respect to the purpose of the Directive.

• It is too prescriptive of the methods to be used by the target institutions, insisting on procedures that in some cases will be impracticable
• It is insufficiently hospitable to solutions based on licensing, which are mentioned briefly in Recital 20 but which have no legislative support in the following Articles in order to allow them to function across borders
• It seeks to modify the exceptions contained in Directive 2001/29/EC by adding further restrictions on the freedom of action of the target institutions
• It prescribes over-burdensome methods for institutions to publish their records

You can read the full text of the memorandum here (ISF does not seem to have a website yet).

The memorandum echoes some of the objectives raised by COMMUNIA in our own policy paper on the directive, and raises a couple of issues that we have not touched upon. It is of course rather worrisome that and organization such as Europeana, which embodies the aspirations of the Europeana Union in the digital heritage realm, makes it this clear that the proposed directive will not make it any easier for them to achieve it’s objectives. This is even more worrying since it is the same European Commission that is formulating these objectives, via it’s Recommendation Commission recommendation on the digitisation and online accessibility of cultural material.

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