Dutch agreement on digitizing orphan works

FOBID (Netherlands Library Forum) and VOI©E (Vereniging van Organisaties die Intellectueel eigendom Collectief Exploiteren, or Netherlands Association of Organisations for the Collective Management of Intellectual Property Rights) have issued a joint declaration on the digitization of orphan works.  From yesterday’s press release:

…As far as is known, this is the first agreement of this type anywhere in the world between libraries and right holders. There is concern in many other countries too regarding how to deal with the rights of right holders who cannot be traced, i.e. the holders of rights in â??orphan worksâ?. If the arrangement that has now been accepted in the Netherlands is imitated in other European countries, it will have an enormous effect on the availability of recent works in the â??Europeanaâ? digital library….

The essence of the agreement is that the libraries that are represented receive permission, on certain conditions, from virtually all right holders to digitise their collections and make them publically available on their own premises for teaching or research purposes. The works concerned must be part of the Dutch cultural heritage and no longer commercially available. The libraries do not need to pay the right holders as long as the works are only made available on their own premises.

Separate consent is required, however, if the digitised works are made more widely available, for example by means of remote access or via the Internet. In that case, an agreed payment must be made….Even then, the library will not need to go in search of the right holders because this will be done by collecting societies such as Lira and Pictoright….

Individual right holders can naturally still object to their work being digitised and made accessible. In that case, the libraries and archives concerned are required to cease making the works accessible; in practice, very few titleholders actually object.

Kees Holierhoek, the chairman of the Lira copyright holdersâ?? organisation and of the digital right holders working party, has this to say about the new agreement: â??Iâ??m very pleased about this agreement. Itâ??s important for us that copyright should be respected, and that has been done in this case. At the same time, the agreement has done away with a major obstacle to making texts and photos accessible. Authors, freelance journalists, photographers, and publishers will all have a veto right if they do not wish to participate. If they do wish to participate, they can claim payment if their material is made accessible outside the institutionâ??s own premises.â?

Martin Bossenbroek, the acting General Director of the National Library of the Netherlands, says: â??This agreement is a real breakthrough. Itâ??s extremely good news for libraries like the National Library of the Netherlands whose core task is to manage nationally important heritage collections and make them available. The agreement regulates digitisation and the availability of digitised collections on our own premises. But that is only the first step, because we naturally want to also make the digitised collections available online. I think the real benefit of this agreement is that it shows how all the various interested parties understand one anotherâ??s positions and arguments. That constructive attitude will also make it possible to arrive at good follow-up arrangements for provision of material on the Internet.â?

From yesterday’s declaration:

…The Digiti©E Committee, made up of representatives of the right holders acting together as VOI©E…and representatives of libraries, archives, and museums…acting together as FOBID; …

Declares on the authority of the Foundation of Copyright Interests and VOI©E that institutions shall be given general consent to digitise their collections and make the digitised versions available subject to the following conditions:

1. The institution is a publicly accessible library, museum, or archive which does not have as its object â?? either in general or with the activity concerned â?? the achievement of any direct or indirect economic or commercial advantage;

2. Only works forming part of the institutionâ??s collection will be digitised;

3. The works to be digitised form part of the Dutch cultural heritage;

4. The works to be digitised have been lawfully acquired by the institution;

5. To the best knowledge of the institution, the works to be digitised are no longer commercially available;

6. To the best knowledge of the institution, the rights regarding the works to be digitised are vested in Dutch right holders or in right holders who can be represented â?? or most of whom can be represented â?? by a Dutch collecting society;

7. It is difficult for the institution to contact individual right holders;

8. As long as no other arrangements have been made with or on behalf of the right holders, the digitised works shall be made available solely via a closed network on the premises of the institution and for the purposes of teaching, research, or private study;

9. In the case of visual material, the quality of the digitised representation shall be such that digital reproduction cannot have a negative effect on the opportunities for exploitation on the part of the original right holder;

10. Either on the institutionâ??s website or in some other way directly associated with display of the digitised works, right holders will be offered the opportunity to object to access being provided to the digital copy of the work in which they can still exercise copyright; Should such objection be received, the institution shall immediately cease the provision of access to the digital copy until agreement has been reached with the party or parties concerned; …

Comment.  This agreement does not directly grant rightsholder consent to OA.  But it does grant consent for digitization and restricted online access, and it streamlines the process of obtaining consent for OA.  For orphan works still under copyright, these are significant steps forward.