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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Simply creating a copy of an image won’t result in a new copyright in the new item. However, there is a degree of uncertainty regarding whether copyright can exist in digitised copies of older images for which copyright has expired. Some people argue that a new copyright may arise in such copies if specialist skills have been used to optimise detail, and/or the original image has been touched up to remove blemishes, stains or creases.

However, according to the Court of Justice of the European Union which has effect in UK law, copyright can only subsist in subject matter that is original in the sense that it is the author’s own ‘intellectual creation’. Given this criteria, it seems unlikely that what is merely a retouched, digitised image of an older work can be considered as ‘original’. This is because there will generally be minimal scope for a creator to exercise free and creative choices if their aim is simply to make a faithful reproduction of an existing work.

This clarification is noteworthy because the UK has for a long time believed that digital reproductions of public domain works may be protected by copyright. Many UK cultural heritage institutions claim copyright on public domain images by making the argument that the standard of originality is lower in the UK than it is in the rest of Europe (pointing to the idea that in the UK the determination of originality is based on a ‘sweat of the brow‘ standard, and as a result the mere effort required in making a digital reproduction of a public domain work justifies a copyright claim over the original reproduction).

With their updated copyright notice the IPO clearly points out that this idea is not supported by the EU copyright framework. As in the rest of Europe copyright in the UK must be based on an author’s own intellectual creation. While the the idea that simply making a digital reproduction of an artwork creates new rights over it has always been absurd, it has had strong attraction among cultural heritage institutions trying to figure out their role in the digital environment. Claiming rights over digitized public domain works provides these institutions with a false sense of being in control over how works should be accessed and used (and might even undermine their very nature as public institutions whose goal is to share creativity and culture).

The new IPO copyright notice validates the principled stance taken by Europeana—which has argued since the very beginning that ‘digitisation of Public Domain content does not create new rights over it‘, and should help Europeana in its efforts to convince additional cultural heritage institutions across Europe to explicitly state the public domain status of digitized public domain works. With more and more institutions subscribing to this view (most prominent among them the Dutch Rijksmuseum), Europeana has transformed itself into the world’s biggest repository of public domain works.

While the IPO’s position supports our conviction that what is in the public domain must stay in the public domain, it is of limited use in countries such as Germany or Spain where institutions can claim exclusive rights over unoriginal reproductions. Remedying this situation requires a further harmonisation of the EU copyright rules—as proposed by the European parliament earlier this summer when it adopted the Reda report.

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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.

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