Ten Years Later, The EU Orphan Works Directive Is Officially A Failure – Just As The Copyright Industry Intended

Every so often, Techdirt writes about the long-standing problem of orphan works, the huge collection of older creations that are out of circulation and have no obvious owners. Arguably, they should be called “hostage works”, since they remain uselessly locked away by rigid and outdated copyright laws, to no one’s benefit. Despite that, the copyright industry always fights hard against the outrageous idea that we should make it easier to bring these works back into circulation, where people can enjoy and use them.

One of the worst results of that attitude is the EU Orphan Works Directive, passed ten years ago. It started out as an honest attempt to free hostage works for the benefit of society. But along the way, the copyright industry lobbied long and hard to make the resulting law so bad as to be useless. One minor concession granted to the many critics of the final text was that the European Commission was required to submit a report by 29 October 2015 on how the Directive was working. The Commission has finally published the report (pdf) – a mere seven years late. It’s hard not to feel that the Commission delayed the publication of the report as much as possible because it is so damning. Here’s the key finding:

orphan works make up a large share of the collections of cultural heritage institutions. However, 8 years after the transposition deadline, the Directive has been rarely applied in practice. Stakeholders are divided on whether the Directive has led to improvements in the digitisation and dissemination of orphan works. The use of the exception provided by the Directive to digitise and disseminate orphan works seems to be very limited if the low number of recorded works in the EUIPO database is taken as the benchmark.

In other words, the Directive has been an embarrassing failure. Far from leading to a blossoming of culture through the renewed availability of orphan works as its original supporters hoped, it has become the legislative equivalent of abandonware. The report goes on to explain that the main reason the Directive has failed is that the process of liberating a hostage work is too “burdensome”. That’s a direct result of the copyright industry insisting on all kinds of unreasonable limitations and disproportionate “safeguards”, supposedly to stop the release of orphan works somehow undermining copyright. They were, in fact, conscious impediments designed to make the entire Directive so awkward to use that no one would bother. The belated European Commission report confirms that they have worked.

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CC Australia’s response to the exposure draft of the Access Reform Bill | by Elliott Bledsoe | Creative Commons: We Like to Share | Mar, 2022 | Medium

“On Friday 25 February the Creative Commons Australia Chapter (CC Australia) made a submission to the Australian Government Department of Infrastructure, Transport, Regional Development and Communications in response to their consultation on the exposure draft of the Copyright Amendment (Access Reform) Bill 2021 and a review of the technological protection measures (TPMs) exceptions in the Copyright Regulations 2017….

In the submission, CC Australia expresses its support for the proposed reforms as they harmonise with CC’s vision and mission. There are strong public interest arguments to support activating orphan works and supporting equitable access to cultural collections (and it aligns with CC’s Open GLAM Program). Permitting quotation of copyright material in a range of noncommercial scenarios will help make research available to the research community and the public quicker. And further facilitating online education and encouraging flexibility in the delivery of government services are both worthwhile endeavours….”

Orphan Works Post Brexit – One Year On Tickets, Wed 26 Jan 2022 at 10:00 | Eventbrite

“It has been one year since the UK left the EU. This detailed half-day course provides an essential overview of the impact of Brexit on the management of copyright works, focussing on orphan works. It will provide an important opportunity to evaluate how access can be provided to orphan works, the role of risk management as well as an opportunity to plan how to adapt your orphan works policy and procedure.

This course has been developed and is being delivered by Naomi Korn Associates, the leading industry experts in copyright, licensing and data protection.

This training is suitable for individuals who already have a basic understanding of copyright and/or have attended our Copyright Essentials or Advanced Copyright courses….”

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….”