 |
| Apparently scarier than expected |
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."
