The trainwreck that is the Orphan Works Directive

14 July 2017

In 2012 the European Parliament adopted the Orphan Works (OW) Directive on ‘certain permitted uses of orphan works by cultural heritage institutions’. The directive intends to fill the gap between the mission of cultural heritage institutions to share cultural works to citizens, and the complex, costly, and sometimes impossible task of locating rightsholders to get permission to make these works available.

The directive requires a diligent search of all possible rightsholders of a work. After doing this diligent search and registering the work at EUIPO’s Orphan Works Database, the OW Directive allows the cultural heritage institution to reproduce the work and to make it available to the public.

Our analysis of the directive prior to its national transpositions argued that it was bound to be a train wreck. Last year I reported on the research results by the EnDOW project to which Kennisland is an external advisor++Beta versionWith EnDOW we work on an online platform that guides the layperson through a diligent search. See our announcement of its beta version here.. The project’s initial results show that the national implementations of the directive across Europe do not provide the much-needed solution for the problem of orphan works. Quote from EnDOW report-1 Requirements for Diligent Search in the United Kingdom, the Netherlands, and Italy:

“Our data show that these institutions will find [it] difficult to clear the rights of their collections while at the same time complying with the requirements of the legislation.”

EnDOW conducted a questionnaire with national experts about the implementation of the directive and its diligent search requirements. Especially the lack of legal certainty that the directive brings as to what constitutes a valid diligent search and the sustainability of the diligent search are seen as problematic. EnDOW’s second comparative study expands the earlier study to 20 EU member states and creates an even bleaker perspective. This study concludes that the directive has not achieved its goals. Quote from EnDOW report-2 Requirements for Diligent Search in 20 European Countries:

“It is appropriate to conclude that the Orphan Work Directive has at best only partly achieved its main goal of facilitating the digitisation and dissemination of [orphan works].”

Legal certainty and unsustainable diligent searches

WhileThere is a lack of legal certainty as to what constitutes a valid diligent search. the directive has mostly been transposed verbatim, there still are differences between member states. For example, differences in underlying copyright law like a presumption of authorship and transfers of ownership creates differences between member states. Also, only the UK has published an exhaustive list of sources to be checked. All other member states have indicative lists. This creates an uncertainty whether all sources are checked for a diligent search. These differences lower the legal certainty as to what constitutes a valid diligent search. Quote from EnDOW report-2:

“The Directive deserves particularly low marks for its (lack of) legal certainty as to what constitutes a valid diligent search and the sustainability of this requirement for would-be beneficiaries of the exception.”

Number of sources by country
Number of sources by country

Number of sources by country

Maker: EnDOW

Rights: All rights reserved

Number of sources by country

The report found a total of 1,444 sources that are to be consulted in the 20 countries. 36% of these sources is not freely accessible; they either need a login, payment or are only available on the physical site of the institutions. This amount of required but unavailable sources create an overly high burden on the cultural institutions to do a diligent search. Quote from EnDOW report-2:

“The Directive’s rules on ‘appropriate sources’ obliges Member States to impose a very high burden on cultural institutions in terms of number and quality of sources to be consulted.”

The36% of all sources is not freely accessible. results of this second EnDOW report present further evidence that the European Union has failed to provide cultural heritage institutions with a legal mechanism facilitating the much-needed digital access to Europe’s cultural heritage. In the light of this second report it is time that the European Commission does its overdue review of the working of this directive to determine whether the OW directive is fit for purpose.

A first indication that this may not be the case lies in the low number of works that have been registered in the EUIPO’s Orphan Works Database. More than three years after the implementation of the directive the EUIPO’s database contains only 5,833 works. The research undertaken by EnDOW clearly shows that this is the result of the excessive search burden that institutions have to comply with.

GivenAfter more than 3 years the EUIPO database only contains 5,833 orphan works. this, it it may very well be possible that an honest review of the directive comes to the conclusions that the OW directive is not fit for purpose and should be replaced by another instrument. A good candidate would be a more comprehensive version of the rules for allowing access to out-of-commerce works++Orphan worksBy definition orphan works (works whose rights holder cannot be identified or located) are a subset of out-of-commerce works (works that are not available anymore via customary channels of commerce). that have been proposed by the European Commission as part of its proposal for a new Copyright in the Digital Single Market directive. One key lesson learned from the experience with the OW directive is that requirements imposed on exceptions for cultural heritage institutions that want to make out-of-commerce works available, need to be manageable.

Note: Maarten is technical advisor for EnDOW. The ideas expressed in this opinion should not be attributed to EnDOW.

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