Vuopala (2010)

From Copyright EVIDENCE

Advertising Architectural Publishing of books, periodicals and other publishing Programming and broadcasting Computer programming Computer consultancy Creative, arts and entertainment Cultural education

Film and motion pictures Sound recording and music publishing Photographic activities PR and communication Software publishing (including video games) Specialised design Television programmes Translation and interpretation

1. Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare 2. Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)? 3. Harmony of interest assumption between authors and publishers (creators and producers/investors) 4. Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption) 5. Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)

A. Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right) B. Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction) C. Mass digitisation/orphan works (non-use; extended collective licensing) D. Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability) E. Fair remuneration (levies; copyright contracts) F. Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Source Details

Vuopala (2010)
Title: Assessment of the Orphan works issue and Costs for Rights Clearance. For the EU Commission
Author(s): Vuopala A.
Year: 2010
Citation: Vuopala, A., 2010. Assessment of the Orphan works issue and Costs for Rights Clearance. European Commission, DG Information Society and Media, Unit E, 4.
Link(s): Definitive , Open Access
Key Related Studies:
Discipline:
Linked by: Cave, Deegan and Heinink (2000), Dryden (2008), Korn (2009), Serrano et al. (2019), Stobo, Patterson, Erickson and Deazley (2018)
About the Data
Data Description: The Commission sent requests for information to 17 representatives of cultural institutions that had previously been involved with digitisation of cultural material. The request was also distributed via mailing lists of associations such as LIBER (Association of European Research Libraries) and CENL (Foundation Conference of European National Librarians). 22 responses were altogether received.
Data Type: Primary data
Secondary Data Sources:
Data Collection Methods:
Data Analysis Methods:
Industry(ies):
Country(ies):
Cross Country Study?: Yes
Comparative Study?: Yes
Literature review?: No
Government or policy study?: Yes
Time Period(s) of Collection:
  • November 2009
Funder(s):
  • European Commission

Abstract

In the context of the digital libraries initiative, the Commission has pointed out that the digitisation and online accessibility of cultural content require appropriate measures when dealing with orphan works i.e. material still in-copyright but whose right holders cannot be identified or located. In the recently released Communications "Europeana – next steps" and "Copyright in the knowledge economy" the Commission indicates that it will examine the orphan works problem in an impact assessment, which will explore a variety of approaches to facilitate the digitisation and dissemination of such works.

It is hard to establish reliable figures on the amount of orphan works, because at the moment there is no easy way to establish that a work is orphan. Hence, very little systematic research has been done and hardly any empirical data has been available about problems related to orphan works. The orphan works issue has been extensively analysed by the Copyright Subgroup within the High Level Expert Group on Digital Libraries, appointed by the Commission in 2006. A consolidated Final Report was published in December 2009.

Therefore, as a complement to the past work and in order to gather as much empirical evidence as possible on orphan works in terms of 1) the dimension of the problem and 2) of the time and resources involved in efforts for clearing rights, the Commission carried out a fact finding mission in December 2009. A request for information was sent to 17 representatives of cultural institutions who had previously been involved with digitisation of cultural materials (such as British Library, Institut National de l'Audiovisuel and Deutsche Nationalbibliothek). The letter was also distributed via mailing lists of library organisations such as the LIBER and CENL. Attached to this assessment is a list of the recipients. All together the Commission received 22 responses. Several of them included comprehensive tables and statistics about key issues reflecting the above questions and a description of concrete situations. Considering the difficulties in demonstrating the dimension of orphan works in concrete figures within digitisation projects around Europe, the received materials have been useful to illustrate the difficulties faced by cultural institutions when trying to clear the rights involved in the digitisation and online accessibility of protected content in their collections, particularly orphan works.

This analysis gathers the experiences of this fact finding mission as well as the figures included in other governmental fact finding initiatives, such as the US Report on Orphan Works and the Gower's Review, both of 2006, and the more recent Digital Britain, © The way ahead and In from the Cold reports, all of 2009. The results of the ACE Study (European Film Archives association) of 2010 about the amount of orphan works in film archives across Europe is also reflected in this paper. The status of national initiatives regarding solutions to the orphan works issue in various Member States was examined in February 2008. Some EU countries had already taken steps to develop a specific solution for the orphan works issue. The most advanced in this area are Denmark and Hungary. Denmark had chosen to strengthen their system of extended collective licences widely applied also in the rest of the Nordic countries, while Hungary opted for a centrally-granted non-exclusive licence solution. In addition, several Member States such as the UK, Germany and France are considering solutions varying from limitations to the exclusive rights of the authors, to the use of mandatory collective licensing, or so called extended collective licensing. In order to solve this issue in a coherent way for all the EU, steps to propose legislation in this field need to be taken urgently.

Main Results of the Study

The results of the study showed that there were a high number of Orphan Works across the Cultural Institutions. Orphan works form a significant part of any digitisation project and the survey shows high percentages of orphan works for almost all categories of works, especially among photographs, and audiovisual materials. The study also found that transaction costs for clearing rights were expensive. Important information was collected also about the experiences as well as concrete costs involved in the rights clearance processes of cultural institutions. This information shows that rights clearance is costly and cumbersome for these institutions. In fact, the amount of time and effort to obtain licenses to digitise works has overwhelmed many of them. Data shows that the older the work and the less economic value it has, the more it costs to clear rights to use it.

Policy Implications as Stated By Author

A large number of digitisation projects has been analysed for this report, and the findings indicate clearly that there are considerable amounts of orphan works in collections of cultural institutions around Europe. This assessment should not, however, be considered as a comprehensive analysis of the situation concerning orphan works because extensive research has not been carried out in this topic. The figures in the report only illustrate the dimension of the problem without implying any particular policy decisions. However, the report is meant to provide solid and reliable raw material for a fully-fledged impact assessment of the issue of orphan works aimed at considering concrete solutions to remedy the issue in the digital environment, as announced in the Commission Communication on Copyright in the Knowledge Economy.

Coverage of Study

Coverage of Fundamental Issues
Issue Included within Study
Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare
Green-tick.png
Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)?
Harmony of interest assumption between authors and publishers (creators and producers/investors)
Green-tick.png
Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption)
Green-tick.png
Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)
Coverage of Evidence Based Policies
Issue Included within Study
Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right)
Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction)
Green-tick.png
Mass digitisation/orphan works (non-use; extended collective licensing)
Green-tick.png
Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability)
Green-tick.png
Fair remuneration (levies; copyright contracts)
Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Datasets

Sample size: 22
Level of aggregation: Cultural Institutions
Period of material under study: 2009