New Directive on Orphan Works?

According to reports from Brussels a draft of an EU directive on the mutual recognition of orphan works in the sector of text works will be published within the next few days. This is really overdue and, in principle, highly welcome.

The EU Commission had established a High Level Expert Group on Digital Libraries in 2006. This group published a “Final Report on Digital Preservation, Orphan Works and Out-of-Print Works”. After having evaluated the responses to the Commission’s Green Paper on Copyright in the Knowledge Economy the Commission held several public hearings and meetings with a variety of stakeholders. On the basis of the outcomes of these activities the Commission elaborated the draft of the directive to be published soon.

We understand that the Commission’s current proposal to facilitate the digitization and dissemination of orphan works in digital libraries such as EUROPEANA applies only to literary works and embedded works such as photography, illustration and others that are contained in books, journals, newspapers, magazines or other writings. The new directive is said to ensure that all Member States allow libraries, educational establishments, museums and archives to reproduce orphan works (in accordance with Article 2 of Directive 2001/29/EC) and make them available (in accordance with Article 3 of Directive 2001/29/EC) to the international public via digital libraries on the internet, provided that their status of orphan has been established by a diligent search. A fixed list of resources to be consulted will be defined by an annex to the directive. A diligent search shall be carried out for each work individually. The right to reproduce orphan works would be granted for the purposes of digitization, indexing, cataloguing, preservation and restoration, as long as such use is not for direct or indirect commercial advantage.

The directive is expected to follow the principle of subsidiarity; therefore all Member States are free to choose their own model of dealing with orphan works as long as they mutually recognize as orphans those works identified as orphan works in the Member State where the work was first published. All Member States will have to ensure that orphan works which have been digitized and made available to the public in one Member State are available throughout the Common Market. This is really a major breakthrough towards a European harmonization of the use of orphan works.

The issue of orphan works is thus tackled only for a limited number of works at all. We understand that the issue of works from the audiovisual and photography sectors will be analysed in a forthcoming Green Paper on audiovisual productions.  This is urgently needed because a project such as EUROPEANA is meant to gather the whole of Europe’s cultural heritage, not only written documents.

This draft only partly takes into account the many statements uttered by stakeholders such as ENCES, who spoke out in the interest of education, research, libraries and other information intermediaries. In a letter to President Barroso and the EU Commission of August this year ENCES had asked the Commission to consider the needs of mass digitization projects. Libraries and other information intermediaries which are willing to undertake mass digitization projects will not be able to provide the means of a diligent search item per item. For these projects a more liberal definition of orphan works and thus a more liberal approach to digitization is needed.  ENCES’ request to introduce a mandatory general exception for the use of orphan works by libraries, educational establishments, museums and archives for the purposes of education and research in the Directive 2001/29/EC has unfortunately been disregarded.