The European Orphan Works Directive: a missed opportunity?

Earlier this month, the European Parliament and the European Commission released a new compromise text on orphan works.

The Compromise Text is available here:

KEI sees the text as a step backwards for access to knowledge. The proposed directive makes far too many compromises, is too limited in terms of the beneficiaries and uses of works, and creates complicated, burdensome and costly procedures and record keeping requirements.

Background on earlier EU consultations

In 2008, KEI provided views to the Consultation for the Commission’s Green Paper on Copyright in the Knowledge Economy. In July 2008, July 2009 and June 2011, as member of the Transatlantic Consumer Dialogue (TACD), a forum of US and EU consumer organizations, we urged the US and EU authorities to overcome legal barriers to access orphaned copyright works. (See TACD Orphan Works resolution DOC NO: IP 12-11.)

With copyright terms of life plus 70 years, and automatic copyright under national laws, there exist countless books, articles, pamphlets, letters, photographs, audio and visual recordings, software, architectural and other copyrighted works that are not being commercially exploited, and for which it is difficult or impossible to identify and or locate the owner of the copyright protecting the work. These works are largely inaccessible to the public, because copyright laws create large financial risks for acts of infringement associated with the copying, distribution and use of such works. Orphan works are potentially valuable to historians, documentary film makers, scholars, persons engaged in genealogical research, and artists. Solutions to the Orphan Works problem will require changes in copyright laws.

Therefore, we have been supportive of measures that will expand access to orphan works, such as:

  • Exceptions for uses of orphaned works,
  • Limitations on damages for good faith infringement of orphaned works,
  • Restrictions on the use of injunctions for new works that recast, transform, adapt or integrate an infringed orphaned work with a significant amount of original expression,
  • Compulsory licensing of works
  • Obligations to actively make protected works available, within the flexibility available under the WTO TRIPS Agreement

Adopting a common regime on uses of orphan works is a valuable goal for the European Union and it will potentially benefit not only its citizens but also people around the world, by making those orphaned works available on a non-discriminatory basis.

The 2012 compromise text

In 2011, the European Commission put forward a proposal on a Directive on certain permitted uses of orphan works. The proposal has been negotiated in the Council and the European Parliament. Earlier this month, the Parliament, the Council and the Commission, decided on an “agreed text” for the orphan works directive. To enter into force, the directive now has to be approved by the Parliament’s Committee on Legal Affairs (JURI), the plenary of the Parliament and the Council.

At first, having examined the current text of the proposal we were pleased to see more efforts to establish an exception to copyright for the special purpose of cultural and educational uses by public institutions such as libraries and archives. We also welcomed the provision that an orphan work in one member state is to be considered orphan in all member states. Finally, the narrow scope of earlier drafts was extended to include more works in various media (as long as already collected by a public institution and not including photograph).

However, we still have serious concerns about possible negative implications of the proposal. Without amendments, the proposal would in fact fail to achieve what motivated the initiative in the first place, i.e. to facilitate the digitisation and dissemination of protected works, a “key action” of the Digital Agenda for Europe. As a librarian colleague said “the bar to enjoy this exception has been set very high!” Indeed.

In brief, KEI sees the following flaws in the most recent “agreed text” for an European Union Orphan Works Directive:

  • The already extremely narrow proposal introduces a series of limitations that restraint any potential positive effects of the Directive.
  • It is limited to non-profit use and does not allow the cross border application of the exception. Instead of removing obstacles for the proper functioning of the internal market, the proposal only regulates the use of orphan works by non-profit institutions, and omit any consideration on the exploitation of those works by for-profit. The contribution of non-for-profit initiatives in the conservation and diffusion of orphan works is extremely important, but the Directive cannot rely only on them to achieve its purpose. The proposal must acknowledge and regulate potential contribution of for-profit initiatives on providing access to orphan works, particularly when these initiatives have stronger effects on the internal market. Furthermore, it limits the dissemination by any user who is thus not an institution with the required specific mission. Therefore, the proposal must address and harmonise the legal framework of for-profit use of orphan works.
  • Works must be part of a non-profit’s collection to allow the institution to digitise it. By requiring that works susceptible of being used must be part of the collection of the respective institution, the proposal reduces excessively the number of potential beneficiaries of the Directive.
  • It also requires costly new bureaucratic procedures and does not provide adequate protection to institutions involved in digitisation and dissemination of orphan works. Keeping record is not foreign to libraries but the new requirement to add to existing record keeping activities the provision of a single publicly accessible online database is way too expensive for many public institutions already under-resourced!
  • By requiring a precise purpose or a specific mission for using the orphan works, the proposal excludes a wide dissemination and use of orphan works by its beneficiaries and end users. In sum, the proposal over restricts the access and use of orphan works. The Directive restricts the purposes for which an orphan work can be reproduced and fails to provide the flexibility needed for uses in the digital environment.

The current text of the proposal will not solve problems with orphan works, but may aggravate them. The proposed Directive should encourage conservation and dissemination of orphan works with adequate safeguards for potential right holders, but it fails to do so. On the contrary, it sets unnecessary limitations on potential beneficiaries, does not solve for-profit use of orphan works and establishes an over-regulated mechanism that could suffocate non-profit initiatives. The purpose of the initiative is not to create additional bureaucratic barriers for a wide dissemination of works whose authors and right holders are neither known nor located… but the current proposed language if unchanged will.

Finally, the Proposal may produce unattended consequences by encouraging countries to limit the use of orphan works in their domestic law. If the proposed Directive is as it is today, it could compel country members of the European Union to comply with the standards of the proposal instead of more flexible solution available in their domestic law. In other words, the proposal not only threaten any future positive and more useful development but it may also threaten any current achievement on the matter. This creates an extremely bad precedent on copyright regulation.

Despite years of activities organised and coordinated by the Commission in this area, the proposed Orphan Works Directive is a missed opportunity.

The Compromise Text: