|Title:||The Problem of Orphan Works in the EU An overview of legislative solutions and main actions in this field|
|Citation:||Vetulani, A. (2008). ’The Problem of Orphan Works in the EU–an overview of legislative solutions and main actions in this field. Rapport for European Commission, DG Information Society and Media, Unit E, 4.|
|Link(s):||Definitive , Open Access|
|Key Related Studies:|
|Linked by:||Vuopala (2010)|
|About the Data|
|Data Description:||The information was submitted at the request of the European Commission in the form of questionnaires (first of June 2007 and second of November 2007), as a result of bilateral exchange of information between the European Commission and Member States and finally, in the MS final reports on the progress in the implementation of the Commission Recommendation which MS had to submit by the end of February 2008.|
|Data Type:||Primary data|
|Secondary Data Sources:|
|Data Collection Methods:|
|Data Analysis Methods:|
|Cross Country Study?:||Yes|
|Government or policy study?:||Yes|
|Time Period(s) of Collection:||
Digital and web-based information technology and media give the public new possibilities of exploiting cultural material. Works existing in analogue form can now be easily digitised and therefore reused for different purposes and by different users. Industries, such as publishers, producers, broadcasters or information service providers are taking advantage of information technology by reusing analogue material in different ways. For instance, analogue material can be republished on the Internet websites, released on DVD or new compilations of old material can be produced. Also different cultural institutions can take advantage of the new opportunities opened up by digital technology. Museums, archives and libraries are involved in the digitisation of their collections of cultural and scientific material. In the case of the activities carried out by cultural institutions, the purpose of digitisation is often not only to preserve cultural and scientific material but also to provide users with access to their resources, including access online. To promote digitisation, online accessibility and preservation of digital material of cultural institutions, the European Commission launched the "i2010: Digital Libraries" programme1 in September 2005. Before digitising and further reutilising material that is still in copyright, the prospective user must often obtain consent from the copyright owner. The problem appears when it is impossible to find or locate right holders or when right holders remain unknown. This is the problem of so called ‘orphan works’. Where it is impossible to get suitable permission from the owner, digitisation and further exploitation of the material might not take place. Such a situation is to the detriment not only of the user, but generally speaking, of the public, as no-one profits from cultural material left unexploited due to its orphan status. Discussions on how to deal with orphan works are currently being undertaken by stakeholders and cultural and collective management institutions at different levels and scopes. Some of them have been initiated by the stakeholders themselves, others by the European Commission or by Member States. Generally speaking, the aim of these discussions is to find a solution to facilitate the use of orphan material without prejudice to copyright. The eventual solution should provide legal certainty both to users and right holders, should the right holders reappear after the use of orphan works was made without their explicit consent. The objective of this report is to give a general overview of the situation of orphan works in the European Union. The report describes possible legislative solutions to the issue, as well as main actions that are currently underway in this field.
Main Results of the Study
- The system of extended collective licensing is not specifically tailored to orphan works but as its application is general, it can cover the problem of orphan works as well. The system applies automatically to all right holders in a given field, even unknown or untraceable. However in Europe, the ECL system functions only in few countries on a large scale. Although the Copyright Directive does not contain any provisions in relation to neither orphan works nor the management of rights, point 18 of its Preamble provides that the Directive remains without prejudice to any arrangements of Member States concerning management of rights, such as extended collective licensing.
- A model based on a non-exclusive licence is different as it requires the active role of an independent body which has the power to issue a non-exclusive licence. This system requires providing diligent search for the right holders prior to the use of orphan works and paying a fee. In the European Union only the UK law foresees the possibility of issuing a nonexclusive licence but the system has a relatively narrow scope. The UK Copyright Tribunal can issue consent for use of orphan works only in relation to sound recordings. On a large scale this system so far only applies in Canada. The Hungarian provisions that foresee a similar system are still under the form of proposal. It seems also, that Member States can legally introduce provisions establishing a mechanism of issuing a non-exclusive licence by an administrative or public body without prejudice to the Copyright Directive.
- The third option, a model based on limitation or exception to copyrights, does not function for the moment in any legislation. The concept however, is similar to the ‘Canadian model’ in the sense that the user has to provide the diligence search prior to use. The main difference is that as the user could use the work under an exception to copyrights, there is no administrative body to control if the search for the right holder has been diligent enough and secondly, that the fee would be payable only after the reappearance of the right holder. This solution, for the moment, is not compatible however with EU legislation as the Copyright Directive does not foresee any possibility for Member States to introduce new exceptions or limitations to copyrights (the list of possible exceptions and limitations to copyrights in the Directive is exhaustive). That is why the solution of the UK would require changing the European copyright law prior to introducing a new limitation to copyright in UK legislation.
- The problem of orphan works is very complex, especially because of the cross-border aspect of digitisation and following the reuse of digital material. Still, the majority of countries in the European Union do not have any legislation concerning use of orphan works. Therefore it is essential that Member States should adopt a mechanism that will be interoperable in other countries within the EU with the ‘mutual recognition’ option.
Policy Implications as Stated By Author
- Although cultural institutions, collective societies and stakeholders undertake some actions, there is a growing expectation that some sort of mechanism should be introduced by Member States, especially since the Commission Recommendation recommends taking steps to introduce mechanisms or otherwise facilitate use of orphan works.
- The idea is that once digitised and made available online in one Member State, after fulfilling commonly agreed principles and due diligence criteria for search of right holders, orphan works would be accessible in all other countries within the European Union. It is therefore essential that mechanisms adopted by Member States are interoperable and that there is a system of mutual recognition of adopted solutions between countries. In the case where Member States do not foresee to undertake any steps to create a mechanism for use of orphan works, it would not be possible to achieve interoperability within the EU. In such a situation it would be necessary to implement a mechanism enabling the use of orphan works at European level. This would require undertaking other actions in order to harmonise national solutions and provide Member States with a suitable mechanism for the use of orphan works.
Coverage of Study
|Level of aggregation:||Country|
|Period of material under study:||2007|