Evaluating the Orphan Works Directive | Europeana Pro

“Throughout the survey, we noted that with two relatively overlapping systems in place, cultural heritage professionals are likely to use the one that provides the best solution, with the other one remaining mostly unused. We therefore recommended considering retracting the Orphan Works Directive. We also noted its clear flaws so that the same mistakes would not be repeated again. 

We noted the following: 

The diligent search for rights holders is problematic, with the sources it is mandatory to consult often irrelevant and difficult to access. Pertinent sources are sometimes not included.

The time and resources that an institution needs to dedicate to conducting a diligent search present challenges, particularly as after completing this process there is still no full guarantee that the institution will always be able to use the work lawfully. 

The very limited scope of the Directive in different types of works is a clear downside; including embedded works (for example, the multiple works contained in a scrapbook) in those whose rights holders have to be searched for makes the determination extremely time-consuming and almost impossible.  

The Directive does not provide a sufficient level of clarity regarding the compensation that rights holders can claim; this lack of clarity has strongly disincentivised cultural heritage professionals from relying on this scheme. 

The EUIPO Orphan Works database can be cumbersome when working with large datasets and is not sufficiently interoperable with the repositories of cultural heritage institutions. 

Having two overlapping schemes is likely to raise a lot of uncertainties for cultural heritage professionals, for instance when trying to assess which of the two options to rely on. The out of commerce works provisions in the Copyright in the Digital Single Market Directive, while tackling the same challenges, offer much better solutions and less cumbersome conditions, perhaps to a large extent given the lessons learned from the Orphan Works Directive, and we are hopeful that they will deliver their promise. …”

Public Domain Manifesto

” The following principles are essential to preserve a meaningful understanding of the Public Domain and to ensure that the Public Domain continues to function in the technological environment of the networked information society. With regard to the structural Public Domain these are as follows:

  1. The Public Domain is the rule, copyright protection is the exception. Since copyright protection is granted only with respect to original forms of expression, the vast majority of data, information and ideas produced worldwide at any given time belongs to the Public Domain. In addition to information that is not eligible for protection, the Public Domain is enlarged every year by works whose term of protection expires. The combined application of the requirements for protection and the limited duration of the copyright protection contribute to the wealth of the Public Domain so as to ensure access to our shared culture and knowledge.
  2. Copyright protection should last only as long as necessary to achieve a reasonable compromise between protecting and rewarding the author for his intellectual labour and safeguarding the public interest in the dissemination of culture and knowledge. From neither the perspective of the author nor the general public do any valid arguments exist (whether historical, economic, social or otherwise) in support of an exceedingly long term of copyright protection. While the author should be able to reap the fruits of his intellectual labour, the general public should not be deprived for an overly long period of time of the benefits of freely using those works.
  3. What is in the Public Domain must remain in the Public Domain. Exclusive control over Public Domain works must not be reestablished by claiming exclusive rights in technical reproductions of the works, or using technical protection measures to limit access to technical reproductions of such works.
  4. The lawful user of a digital copy of a Public Domain work should be free to (re-)use, copy and modify such work. The Public Domain status of a work does not necessarily mean that it must be made accessible to the public. The owners of physical works that are in the Public Domain are free to restrict access to such works. However once access to a work has been granted then there ought not be legal restrictions on the re-use, modification or reproduction of these works.
  5. Contracts or technical protection measures that restrict access to and re-use of Public Domain works must not be enforced. The Public Domain status of a work guarantees the right to re-use, modify and reproduce. This also includes user prerogatives arising from exceptions and limitations, fair use and fair dealing, ensuring that these cannot be limited by contractual or technological means….”

Blockchains, Orphan Works, and the Public Domain

Abstract: This Article outlines a blockchain based system to solve the orphan works problem. Orphan works are works still ostensibly protected by copyright for which an author cannot be found. Orphan works represent a significant problem for the efficient dissemination of knowledge, since users cannot license the works, and as a result may choose not to use them. Our proposal uses a blockchain to register attempts to find the authors of orphan works, and otherwise to facilitate use of those works. There are three elements to our proposal. First, we propose a number of mechanisms, included automated systems, to perform a diligent search for a rights holder. Second, we propose a blockchain register where every search for a work’s owner can be recorded. Third, we propose a legal mechanism that delivers works into orphanhood, and affords a right to use those works after a search for a rights holder is deemed diligent. These changes would provide any user of an orphan work with an assurance that they were acting legally as long as they had consulted the register and/or performed a diligent search for the work’s owner. The Article demonstrates a range of complementary legal and technological architectures that, in various formations, can be deployed to address the orphan works problem. We show that these technological systems are useful for enhancement of the public domain more generally, through the existence of a growing registry of gray status works and clarified conditions for their use. The selection and design of any particular implementation is a choice for policy makers and technologists. Rather than specify how that choice should look, the goal here is to demonstrate the utility of the technology and to clarify and promote its role in reforming this vexed area of law.

Orphan Works Database

“Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works sets out common rules to make digitisation and online display of orphan works legally possible. Under Article 3(6) of the Directive 2012/28/EU, EUIPO [European Union Intellectual Property Office] is responsible for the establishment and management of a single publicly accessible online database on orphan works….

The Orphan Works Database provides information related to orphan works contained in the collections of publicly accessible libraries, educational establishments and museums, as well as archives, film or audio heritage institutions and public-service broadcasting organisations established in the Member States.

The database enables beneficiary organisations – such as those mentioned above – that want to make use of orphan works in digitisation projects to have easy access to relevant information about them. These organisations shall also record works in the database that they have identified as orphan during diligent searches. 

Information received from beneficiaries is forwarded to EUIPO by the competent national authority designated in each Member State, e.g. Ministry of Culture or National IP Office. Only after EUIPO receives the information about orphan works, does that information become accessible in the database….”

Launch of OWL

“The [Harvard Office for Scholarly Communication, OSC] recently released a report, “Digitizing Orphan Works: Legal Strategies to Reduce Risks for Open Access to Copyrighted Orphan Works” by David R. Hansen, Clinical Assistant Professor and Faculty Research Librarian at UNC School of Law….The OSC hopes the report will stimulate further digitization of orphan works, greater use, and greater open access.

To pursue these goals, the OSC is launching a program to identify orphan works in the Harvard Library collections, and build a carefully curated online list called the Orphan Works List (OWL).?OWL will include a detailed record the work, including any critical metadata.?OWL will also serve as a verified notice that we are calling for public help in identifying the rightsholders of the listed works. Each work will have a date and time stamp indicating when we added it to the public list. By using the law and strategy outlined in the Digitizing Orphan Works report, and previously documented strategies, we hope we can eventually open these works to the world….”