Orphan works – Frequently asked questions
European Commission - MEMO/11/333 24/05/2011
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Brussels, 24 May 2011
Orphan works – Frequently asked questions
1. What are orphan works and why is a proposal to deal with them needed?
As part of the Commission's IPR Strategy adopted today, the Commission adopted a proposal to establish common rules on the digitisation (the conversion of analogue data, for example images, video, and text into digital form) and online display of so-called 'orphan works'.
Orphan works are works like books, newspaper or magazine articles that are still protected by copyright but the copyright holders cannot be located to obtain copyright permissions. They include cinematographic or audiovisual works. Orphan works are found in the collections held by European libraries.
The digitisation and dissemination of orphan works pose a particular cultural and economic challenge – the absence of a known right holder means that users are unable to obtain the required authorisation, e.g. a book cannot be digitised. Orphan works represent a substantial part of the collections of Europe's cultural institutions (e.g., the British Library estimates that 40 percent of its copyrighted collections – 150 million in total - are orphan works.
That is why common rules on how to deal with such works are needed in order to proceed with large-scale digitisation projects, such as the Commission's Europeana portal.
What does the proposal for a Directive on orphan works say?
The Commission's proposal, which takes the form of an EU Directive, rests on three pillars. First, the proposal contains rules on how to identify orphan works. It provides that the user has to conduct a diligent search to find the copyright holder. In this search, the user should rely on sources such as databases and registries. One such tool that exists in the book publishing sector is ARROW, the Accessible Registry of Rights Information and Orphan Works. It is hoped that other sectors will also develop similar central rights information databases. Doing so would greatly simplify and streamline the conduct of a reliable diligent search.
Secondly, the proposal establishes that if the diligent search does not yield the identity or location of the copyright holder, the work shall be recognised as an orphan work. This status shall then, by virtue of mutual recognition, be valid across the European Union. This implies that once a work is recognised as an orphan work, it shall be recognised as such across the European Union. The proposal also foresees that there will be a generally accessible record of all recognised orphan works.
Thirdly, the proposal establishes the uses that can be made of the orphan works and the conditions for such uses depending on their nature. Thus, the current proposal should make a major contribution to the development of various European digital library initiatives and their accessibility for everyone throughout the European Union. Clear rules on what works can be posted online as orphan works will also provide the beneficiaries of the Directive – not only libraries, museums and archives but also film heritage institutions and public service broadcasters - with a sound legal framework that safeguards them against claims of copyright infringement. In this respect, a degree of legal certainty can be achieved that will exceed the one that can be achieved on the basis of existing private agreements.
On the other hand, the envisaged rules provide for clear methods of redress by which a reappearing right holder can assert his copyright and thereby end the orphan work status.
What more can be done to promote digital libraries?
Orphan works, while important, are only one of the issues that digital libraries face in their quest to make Europe's cultural heritage available online. The other issue is obtaining copyright permissions for the online display of out-of-commerce books.
Books are out of commerce when publishers or authors decide not to publish new editions or when no copies are sold anymore in the customary chains of commerce.
Nevertheless, as with orphan works, out-of-commerce books are still protected by copyright and copyright permissions have to be obtained before they are posted online as part of an online library project. It is of crucial importance for a digital library project that out-of-commerce books are not left behind.
The Commission has therefore convened a stakeholder dialogue on out-of-commerce books. This forum commenced work in November 2010 and will aim to produce model forms of collective licensing agreements that allow large-scale digitisation as part of a digital libraries initiative. Libraries, authors, publishers and collecting societies active in the field of reprography are participating in this dialogue.
See also IP/11/630
For more information on the proposal: