Commission reveals results of public consultation on the draft directive on orphan works

Previously, we reported that the European Commission had opened a consultation on their new draft directive on orphan works. The consultation has been closed this week and the first results are now published.

Two principles from the draft directive prove to be of particular concern to the parties that took part in the consultation. The issues are the requirement of a ‘diligent search’, which is necessary for a work to be identified as an orphan work and the requirements to make this work available to the public online. A work is considered an orphan work if the owner of the work is unknown or could not be traced.

The Commission received 22 comments from Dutch cultural institutions, such as the Dutch collective management organizations Lira / Pictoright and Voi©e, the Dutch Royal Library (‘Koninklijke Bibliotheek) and the Dutch heritage institutions (‘Nederlandse Erfgoedinstellingen’). Especially for cultural institutions with a great societal or community interest there is a strong wish to digitize orphan works.

Most organizations advocate a law establishing collective licensing model in the Netherlands and also in other countries that do not use such a model. The Dutch Royal Library says it is important that the directive will not preclude collective licensing models, but will offer explicit provisions for a collective licensing model to make digitization possible on a large scale. In Scandinavian countries, such licensing schemes already exist. For example ‘Extended Collective Licensing’. This concept gives collective management organizations an extended opportunity to sell licenses to third parties on behalf of right holders that are not affiliated with them or on behalf of rights holders that are not (yet) identified. According to the Dutch organizations, such a model could lead to more efficiency and legal certainty with regard to the use of orphan works. However, the question remains whether the collecting societies can manage such a model in a way that provides transparency regarding cash flows within their organizations.

Furthermore, there is criticism about the requirement of 'diligent search' to identify the status of an orphan work. In order to identify an orphan work, the draft directive states that a diligent search only needs to be carried out in the Member State of the first publication of the work. Once the "orphan status" of a work is established after ‘diligent search’, the work in question will be deemed an orphan work throughout the EU. On this basis, it will be possible to make orphan works available online for cultural and educational purposes without prior authorization, unless the owner of the work puts an end to the orphan status.

Besides the fact that this diligent search probably will be time consuming, according to the Dutch heritage institutions (among others) this will also entail large costs. The Royal Dutch Library says that for large-scale digitization a diligent search is not feasible, because of the prohibitive cost of this research requirement. Also, the Dutch collecting organization Lira/Pictoryight states the term ‘diligent search’ causes confusion, as the term is not specified in the draft directive. Due to the fact that Member States can fill in the search procedure themselves, this could lead to large differences between Member States and therefore to legal uncertainty according to Lira/Pictoright.

You can read the draft Directive here and the subsequent comments are available here.

References: IE-forum.nl and Overheid.nl