Hearing on Orphan Works at the German Federal Ministry of Justice - A Report

Members of the Executive Board of ENCES (Karin Ludewig and Michaela Voigt) attended the public hearing on the regulation of the orphan works issue, which took place on 13 October 2010 at the German Federal Ministry of Justice. The topics up to discussion were:

1. object of regulation / differentiation by sectors of works
2. criteria for diligent search
3. permitted extent of use
4. remuneration
5. the author's or rights holder's right to cancellation of use

Karin Ludewig stated on behalf of ENCES that according to the Copyright Subgroup of the High Level Expert Group set up by the European Commission orphan works could sensibly be found in the four sectors of textual, visual, audiovisual and audio works. She suggested that a solution for orphan works of all categories had to be found. Several representatives of the music and film industry denied the necessity to find a legal solution, as they could not see any problem with regard to orphan works. They claimed it was easily possible to trace the rights holders. Representatives of the German National Library DNB and of various archives maintained that there is a necessity to find a legal solution for textual as well as audiovisual works; they reminded the audience of their mandate to archive the cultural heritage and make it publicly accessible. It would be desirable to present it in the Deutsche Digitale Bibliothek and in EUROPEANA, which at the moment is dominated by contributions from France. The representatives of the German booksellers and publishers Börsenverein des Deutschen Buchhandels, of the collecting society VG Wort, and of the libraries, DNB and dbv, agreed on having already come to terms regarding the text sector. The other sectors may need more time to come to an agreement of all stakeholders on how to deal with the orphan works issue in their field. Gabriele Beger from dbv insisted on that there should not be a separate national solution. She explained that the DNB was in close co-operation with the EU.

On the question of whether the legislator should regulate in detail the criteria for a due diligent search and what they should look like the majority of the participants agreed that the details of a diligent search should not be regulated by law. The project ARROW, which develops a workflow for a diligent search for the text sector, was mentioned. The follow-up project ARROW II will develop a workflow for illustrations and other visual works. Karin Ludewig recommended that the regulation should adhere to the outcomes of the Copyright Subgroup which already published Sector-specific guidelines on due diligence criteria for orphan works. The Memorandum of Understanding of the European Digital Libraries Initiative was also mentioned in the discussion. Johannes Fournier from the German Research Foundation DFG reminded the participants that a diligent search is also a cost-intensive one and that a simple solution for mass digitisation projects had to be found.

With regard to the permitted extent of use of orphan works Karin Ludewig stated on behalf of ENCES that libraries, museums and archives need the rights necessary for digitization, long-term archiving and online dissemination of orphan works. They should be presented in EUROPEANA to be used for the purposes of research and education, which means, by the public in general. The present stakeholders agreed on that a remuneration for the use of orphan works to be paid, the amount of which should be negotiated with the collecting societies. The collecting societies would collect the licensing fees and retain them in case the rights holders turn up later, to pay them out then. The sum not refunded to the rights holders by the end of the term of copyright would be used either for social or cultural purposes, be distributed to all recipient members of the collecting societies or given to the archives as a refund for their investment in preserving the orphan works.

When asked whether the rights holders should be granted a right to cancel the license given to use the - formerly - orphan work the participants of the hearing seemed to agree, in their majority, that the right of cancellation should be granted.
The discussion was surprisingly dry; all stakeholders seemed to have accepted the fact that the outcome will have to be a compromise anyway. There were hardly any new ideas or solutions proposed. Now it is for the legislator to find an adequate and internationally compatible solution for the question of how to make the orphan works of all sectors of culture - textual, visual, audiovisual and sound - available to the public and preserve them for future generations.