Thursday 7 June 2012

Informal EU deal on orphan works done

To EU minds the orphan works issue
may appear less disturbing
than this now
As readers of this Blog will be well aware of, debates concerning how to make orphan works available to the public have ensued in the last few years, both in the US and the EU. 
This is because, in the current legal landscape, orphan works cannot be made available without the risk of infringing third parties' copyright.
Just to provide an example of the issues arising from orphan works, The Guardian reports that, “after running a pilot project to clear the rights for 1,000 hours of archive programming for online use, the BBC calculated it would take 800 people three years of full-time work to clear the rights to its archive, assuming that all rights owners could be found and that every one was prepared to grant the rights.
There is no need to recall all the legal problems which the Google Book Search Project has been facing in the US for the last 7-8 years.
As far as the EU is concerned, various solutions have been proposed in the last few years to address issues concerning orphan works. 
These include the 2007 ARROW Project, and last year's proposal for a directive on certain permitted uses of orphan works.
As to the latter, in its 2011 blueprint, the Commission had expressly acknowledged that
"Facilitating the preservation and dissemination of Europe's rich cultural and intellectual heritage and encouraging the creation of European digital libraries is key for the development of the knowledge economy. Innovative licensing solutions are needed to promote the seamless sharing of knowledge and culture that allow academic institutions, businesses, researchers and private individuals to lawfully use copyright-protected materials while compensating authors, publishers, and other creators for the use of their works."
Yesterday the EU made a further step towards the creation of a legislative framework for orphan works. Indeed, the Parliament and Council representatives agreed on a piece of draft legislation. 
According to the official press release
Parliament's negotiating team secured provisions to make it safer and easier for public institutions such as museums and libraries to search for and use orphan works. These provisions include clear rules on compensation for right holders who come forward after a work has been placed on line and a possibility for institutions to use any revenue from its use to pay search and digitisation costs.
Today, digitising an orphan work can be difficult if not impossible, since in absence of the right holder there is no way to obtain permission to do so. The new rules would protect institutions using orphan works from future copyright infringement claims, and thus avoid court cases like that in the US, in which a Google project to digitise and share all kinds of books, including orphan works, was blocked on the grounds that the orphan works question should be settled by legislation, not private agreements
A "diligent" search may be indeed rather exhausting

In compliance with the 2011 draft directive, the text agreed yesterday defines a work as an orphan if, after a "diligent" search made in good faith, it was not possible to identify or locate the copyright holder. 
Once a work has been granted orphan status, it "would be then made public, through digitisation and only for non-profit purposes. A work deemed to be "orphan" in any one Member State would be deemed as such throughout the EU. This would apply to any audiovisual or printed material, including a photograph or an illustration embedded in a book, published or broadcast in any EU country. It would also apply to works not published but nonetheless made available by institutions, provided that they could reasonably assume that the right holder would not object to this act."
There is no need to say that, should the right holder show up, he would be entitled to put an end to the orphan status of a work at any time and claim an appropriate compensation for the use made out of it.
Please Sir, can I have more ...
of harmonisation?

However, the draft legislation contains "a provision to protect public institutions from the risk of having to pay large sums to authors who show up later. Compensation would have to be calculated case by case, taking account of the actual damage done to the author's interests and the fact that the use was non-commercial. This should ensure that compensation payments remain small."
In addition, the parties agreed on inserting a new article in the draft legislation, so to allow public institutions to generate some revenue from the use of an orphan work.
Well done, says the 1709 Blog. However, for the sake of suspicion, this blogger ventures to argue that this project may go far beyond the sole issue of orphan works. Indeed, as declared by Lidia Geringer de Oedenberg, who is steering the legislation through Parliament and led the negotiations, this is meant as a  "first step towards harmonisation of copyright rules in the EU".  Does this mean full copyright harmonisation? 


Paul Edward Geller said...

Eleonora: Thank you for news of this pilot project! It confirms the suspicions of this lawyer, musing in his arm chair on the basis of his own experience. But I'm left with a question: For online dissemination, would any scheme work well if it did not provide for clearance and compensation on anything less than a worldwide basis? Paul

Andy J said...

As something of a copyright minimalist, I welcome this move. But I can't help thinking that the EU is being somewhat two-faced here: on the one-hand they're pandering to the big institutions like the British Library and the BBC by decreasing the protection of copyright holders, and on the other, pandering to the record companies by increasing the copyright term for phonograms (Directive 2011/77/EU).
I shall be interested to see how tightly they define 'institution' when it comes to the bodies who will be permitted to digitize and monetize their holdings. If this is not done well, it will open the door to the wholesale hoovering up of content from the internet, especially digital images, and the exploitation of the proceeds by big business (Google, Getty, I'm looking at you). This is not difficult to contemplate when the self same BBC routinely removes the metadata from images they receive from members of the public, thus making the tracing of the copyright owner that bit more difficult.

Andrew Robinson said...

I see a worrying number of loopholes, ill-defined terms and other problems with this.

Diligent is a weasel word... what counts as a dilligent search? Surely the orphan works question doesn't even arise until the organisation wanting to use something has already done enough of a search to know they can't trace the rightsholder(s)?

If we define dilligent by time spent searching, have we created a market for bad researchers?

Actual damage done - how can we measure this? Surely non-commercial use implies the 'damage' is zero? Do we weigh up the public good of having better museum exhibits when measuring 'damage'?

Worse, this doesn't even attempt solve one of the biggest orphan works problems, that of organisations with no money at all suddenly finding themselves presented with bills for things they would never have used if they thought there would be a cost involved. Why isn't 'ok, we'll stop using it then' a defence?

Given the implied legal existence of orphan works, museums will be faced with a reverse lottery - pick anything from your pile of 2nd world war pictures, and cross your fingers that the photographer died in combat. Is this really a sensible way to do things?

Given that some reverse lottery tickets will be winning ones for the museum, and require no pay-out, doesn't this imply that the financial value of the other ones will also be zero, because zero cost alternatives exist?

Even if we don't see europe-wide jurisdiction shopping from rights holders, and compensaton payments are small, it's a fair bet that legal fees will bankrupt the losing side quite often.

I'm really sad to see such a mess emerge from these negotiations. The orphan works problem only exists because copyright both lasts far too long and has a variable duration. The obvious solution is to bring the duration down to something manageable, so museums can simply put things in the vault for X years and know that when they take them out, the copyright is expired.

Eleonora Rosati said...

@Paul: Thanks for your comment! I am indeed left with the same question. I believe that a worldwide clearance+compensation scheme will be unavoidable eventually. In the meanwhile, I think it is the right time to think about regional clearance+compensation schemes: a EU-wide one would be a relatively easy and much desirable achievement!

@Andy and Andrew: Indeed, the definitions contained in the draft legislation are fairly vague. Alas: this is proper EU-lawmaking style. This - I am afraid - will result in more work for the Court of Justice, which will be referred tons of cases from national courts and have to clarify all these concepts ...

Anonymous said...

And almost certainly illegal under Berne.

"The orphan works problem only exists because copyright both lasts far too long and has a variable duration."

Thank you, the Pirate Party.

Paul Edward Geller said...

Eleonora: In theory, the Union would seem an ideal test bed, not only for a regional orphan-works scheme, but for one that would regionalize the online facilities of national libraries. But the libraries need to be excused from onerous duties to clear copyright before posting works for the public. In practice, in the Union, the interests of the media firms and the collecting societies do not converge with this project or the public interest. The first step is to take money out of the equation, and I doubt that the firms or societies would lose more than marginal rents. They have to give up obstructing and over-complicating the project to wring pennies from it. At least that's the opinion of this cynical old man. Paul

Dennis Nilsson said...

How is it possible that the polish MEP Lidia Geringer de Oedenberg is claiming that the deal would ”the regulation will promote culture and finally make it possible to make some hidden treasures available to the general public.”

”EU deal moves toward pan-European copyright rules”

Is this a new way to censor Internet: "The move comes after the European Commission launched a public consultation on online copyright rules on Monday (4 June) specifically looking at ways to locate illegal content on a website, and how website hosts should be notified about its presence."

Eleonora Rosati said...

@Paul: Point made. Also the Commission is aware of the obstacles resulting from the existence of conflicting interests.
For instance, in its 2009 Reflection Document (, it highlighted the advantages of establishing a EU-wide copyright ("instant Community-wide effect", creation of "a single market for copyrights and related rights", overcoming "the issue that each national copyright law, though harmonised as to its substantive scope, applies only in one particular national territory", enhancing "legal security and transparency, for right owners and users alike, and greatly reduce transaction and licensing costs", restoring "balance between rights and exceptions"). This said, the Commission was also aware that, although by creating a EU copyright title the EU would create a tool for streamlining rights management across the single market, this would raise important issues for the organisation of rights management across the EU ...
Perhaps, the solutions provided to orphan works and EU licensing issues would help understanding how (if possible at all) to reconcile different interests ... But maybe this is just the opinion of a cynical optimist :-)

@ Dennis: debate as to online copyright enforcement is a tough one. Look at what is going on in the US with CISPA ...

john walker said...

Civil code concepts of individual economic rights and Common law concepts of individual economic rights are not that compatible. Global harmonization of copyright would be a big project, possibly bigger than the Euro.