European versus American interpretations of orphan works

The WIPO Standing Committee on Copyright and Related Rights (SCCR) is now discussing the topic of orphan works in deliberations on limitations and exceptions for libraries and archives. The US has a broader view of what constitutes an orphan work compared with the European Union. Here are the interventions of both the US and EU taken from the WIPO lives stream for comparison.

UNITED STATES OF AMERICA: Thank you, Mr. Chairman.

The problem of orphan works is one that is very important to the copyright system and many of our jurisdictions have been working on this problem. Canada and Japan have a robust system for dealing with orphaned works, a system which crosses far beyond just the needs of libraries and archives.

The United States has considered and will consider further legislation in this area and we know our colleagues in the European Union are working on it.

The question is how the question of orphaned works is especially needed in the area of libraries and archives. If one looks at Article 21 in the Africa and group proposal, Article 21.2 says it shall be a matter for national law to determine whether certain commercial use of a work for which the author cannot be identified after reasonable inquiry would require payment or remuneration.

From the United States’ perspective, the commercial use of a work is not something that a library or archive would engage in. We believe that properly constructed exceptions for libraries and archives covering preservation, covering distribution, reasonably necessary for research and for private uses and the other forms of properly crafted library and archive exceptions will apply equally to copyrighted works, whether they are orphaned, whether their parents return or not, whether their parents are well-known, whether they have been abandoned. The exceptions would apply to the copyrighted works regardless.

So for the United States in our discussion, there is a general question why the orphan works issue is different, why the orphan works do not actually fall within each of the other categories so that as long as that exception is properly constructed, it applies to all the copyrighted works, whether the work is a — has an easily located owner or has an owner that cannot be located.

Thank you, Mr. Chairman.

EUROPEAN UNION: Thank you, Mr. President.

I we concur with the remarks made by the Distinguished Delegates of Kenya and Senegal as regards this issue being an issue which is developing, one that is still subject to very tentative discussions and at best it is unclear, and at worst is very controversial.

The European Union and member states are discussing this type of issue. At this moment believe me I know what I am talking about.

Our discussions just right here also show a very typical tendency which is that on the label “Orphan works” different person put different situations and issues and very often where we start talking about something that seems very reasonable, which is how can we ensure that when there is not a right holder that can be identified or located after a diligent search, the work can be used and very quickly this type of discussion turns into discussions as to mass digitization, use of works which are out of commerce, user works which have never been published and where maybe the author of the work never wanted the communication of such works.

These are very different matters and they are extremely delicate.

The limited legislation in place follows different approaches and the same applies for text that is have been discussed in the past or are being discussed. Sometimes you may have proposals which are based on a license granted by a government. We are having discussions in the European Union as to whether other forms of licenses could be used, the United States at the time was considering a limitation to liability of more traditional forms of limitations and exceptions may be considered but all in all, we are at the stage where there is very little precedent where, the link to limitation and exceptions for Libraries and Archives is not necessarily established and where we think that caution needs to be exercised.

The distinguished delegate from India approached me to ask what was the situation in the moment in the context of the European Union and referred to a memorandum of understanding that had been developed in 2008, which memorandum of understanding was very specific on a very crucial issue in order to in good faith declare a work an orphan which is a memorandum of understanding as to what steps need to be taken before you can declare a work an orphan. What is the diligent search you need to undertake which may be very different if a potential or suspected orphan is a book or is a newspaper or is an audio visual work or is another type of work.

In some cases we have had lengthy discussions as regards photography and the risk of “orphanizing” [sic] works which otherwise have good parents out there are very, very high. The European Commission after this has put on the table a proposal of a directive on permitted use of orphan works which is currently under discussions with member states, in the earliest stages of negotiations obviously with the European Parliament and in parallel we have been discussing solutions for out of commerce books based on voluntary agreement of right holders, voluntary mandates to collecting societies and licenses granted by collecting societies.

Again, I insist that it is very important not to put together a number of different issues where far too quickly sometimes the temptation is to take away the possibility for the right holder to exercise the rights it has. We need to look for mechanisms that help facilitation of making available of works that otherwise may be forgotten in libraries and archives but that is not necessarily passed by a limitation to the right of others.

Thank you.

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