|Apparently scarier than expected|
Sunday, 14 February 2016
Orphan works: the diligent search requirement? It doesn't work
Via 1709 Blog friend and copyright scholar Prof Maurizio Borghi (Bournemouth University) comes the news that - according to early results [here and here] of a 3-year research project (EnDOW) undertaken at Bournemouth and funded by Heritage Plus and the EU Commission (JPI Cultural Heritage and Global Change) - the diligent search requirement established by the Orphan Works Directive has been proving more burdensome to satisfy than expected.
This conlusion has been reached by taking into consideration the situation in the UK, Netherlands, and Italy.
According to the relevant press release:
"Legislation on orphan works require that a Diligent Search of potential rightholders is carried out in good faith by consulting appropriate sources. However, the conditions set forth by the law to comply with this requirement pose significant burden to would-be users of orphan works. The analysis conducted by EnDOW researchers in three countries (UK, Italy and Netherlands) reveals that carrying out a Diligent Search may require consultation of an overly high quantity of diverse sources of information. Most importantly, the analysis shows that a sizeable share of these sources is not easily accessible or, even, not accessible at all. In particular, the analysis shows that:
· A total of over 350 different sources have been identified in Italy; over 200 in the UK and almost 90 in the Netherlands.
· A Diligent Search on published books may require consulting up to 32 different databases in the Netherlands, up to 80 in the UK, and up to 131 in Italy.
· Of all the sources to be consulted to conduct a Diligent Search, 70% are freely accessible online in the UK, 56% in Italy and 54% in the Netherlands. This means that, depending on the country, from one third to almost a half of the required sources are not available for free (unrestricted) online access.
· The online availability of sources is the highest for published books (75% in the UK) and the lowest for audiovisual works (only 42% in the Netherlands).
· Guidelines on how to conduct a Diligent Search have been issued only in the UK (by the Intellectual Property Office); no guidance has been provided in Italy and in the Netherlands.
The study suggests a possible solution to this problem that involves soft-law intervention to establish hierarchies among sources for Diligent Search, with a diversification between compulsory and optional sources, depending on their relevance and accessibility. Moreover, the study suggests that a Diligent Search should be considered to be carried out in good faith also when sources that are not freely accessible online are disregarded."