“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. …”