1709 Blog: for all the copyright community

Sunday, 14 February 2016

Orphan works: the diligent search requirement? It doesn't work

Apparently scarier than expected
As readers know, over the past few years this very blog has followed closely relevant developments in the world of orphan works at the EU, UK and US levels.

Via 1709 Blog friend and copyright scholar Prof Maurizio Borghi (Bournemouth University) comes the news that - according to early results [here and hereof 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."

1 comment:

Andy said...

Eleonora,

I think that the headline for this piece is somewhat misleading. While I accept that the EnDOW report (Working Paper 1) is critical of some aspects of the diligent search regimes which apply in the three countries they studied, I cannot see anywhere in their work the conclusion that "It doesn't work"

It is easy to forget that the Orphan Work exception is a privilege which lies outside both the Berne Convention and the WIPO Copyright Treaty and goes to the fundamentals of a copyright owner's rights. indeed it flies in the face of the Three Step Test. If a search is less than diligent, these rights will quickly become worthless, with any individual or body able to just appropriate works with little or no impediment. This was the essence of the Stop43 campaign's objection with respect to photographic works which can easily become 'orphaned' via the internet.

It is accepted that there are strong cultural grounds for making some works available to the wider public (a new public, perhaps?) even where there is a presumption that the works are still protected by copyright. And both the EU Directive and the UK Licensing Scheme are constructed to try and achieve a sensible balance between the competing interests of lost right holders and the public good. It should be hard to circumvent the normal rights of a copyright holder.

While the EnDOW team are to be congratulated for their careful examination of how things have turned out in the three sample countries, they don't appear to have actually followed up on the experience of any of those institutions which have carried out the diligent search process, preferring to compile a large range of possible sources and authorities which might, theoretically, need to be consulted. In contrast I have followed up on the experience of the largest (so far) single user of the UK licensing scheme (namely the Museum of the Order of St John) and their experience was wholly positive, and nothing like the ordeal the EnDOW report portrays.

One should not forget that where institutions like the British Museum, or indeed the Museum of the Order of St John, are concerned, there is likely to be extensive in-house expertise on which to draw when making a search plan. For example, if a work can be dated to a particular period, many of the sources quoted in the Appendix to their report will be inapplicable, and effort can be focussed on those which remain, irrespective of whether the sources are freely accessible online or not. I would also dispute whether all the sources listed are actually valid ones. To take a single example, "Georgian and early Victorian regional newspapers (1750's–1870's)": would this ever need to be consulted, since self-evidently anything contained within them would now be in the public domain?