A promise to solve the twentieth century black hole
Cultural heritage institutions across the European Union could not (and still often cannot) disseminate millions of items held in their collections because of the difficulty in obtaining the copyright permissions necessary to do so.
The Orphan Works Directive came with the promise of solving this worrying problem that has led to the ‘twentieth century black hole’. It did so by creating an exception to copyright for cultural heritage institutions to be able to digitise and disseminate works in their collections that are ‘orphan’, without the need for permission.
However, in addition to a limited scope in the types of materials, the Directive was adopted with significant administrative burdens for cultural heritage institutions that used the system. It was perceived as too costly, leading to many cultural heritage institutions not being able to use it.
The Orphan Works Directive review
Like all European Union Directives, a review took place a number of years later to evaluate whether the Directive was fulfilling its purpose in practice. The review was initiated by the European Commission in August 2020, over seven years later than the date established in the Orphan Works Directive.
The process included an independent Study on the application of the Orphan Works Directive, published in December 2022. On the basis of desk research, a stakeholder survey (answered by 87 participants), and interviews (with 13 individuals), the study concludes that the number of works registered as orphan ‘represents a tiny portion of the estimated orphan works existing in the collections of cultural heritage institutions across the EU’ and that only 24% of the cultural heritage institutions responding to the survey ‘believe that the [Orphan Works Directive] has led to significant improvements in the digitisation and dissemination of orphan works’. Alongside the various issues identified by respondents, two were particularly prominent: the complexity of the diligent search and the mandatory list of sources to be consulted, and the uncertainty surrounding the possibility for rights holders to claim compensation.
On the basis of this independent study, the European Commission acknowledged in a Report on the application of the Orphan Works Directive that ‘the [orphan works] Directive’s mechanism has been rarely used in practice and its relevance as a potential tool for the mass digitisation of cultural heritage has therefore proven to be limited’. It also notes that ‘there are practical difficulties affecting the Directive’s efficiency, especially regarding specific requirements for the diligent search’. However, the European Commission does not propose any modifications to the Directive or measures to ensure that it has a bigger impact. The Directive will therefore continue to exist as it is, with no changes to its scope or to its system.
While it is regrettable that the Directive will not be modified, the Commission expresses willingness to continue the dialogue with all interested parties on how to make sure practical difficulties affecting the Directive’s efficiency are mitigated and will explore with the EUIPO possible improvements to the database.
Looking ahead: the out of commerce works provisions enter the game
In 2019, the adoption of the Copyright in the Digital Single Market (CDSM) Directive, with its articles on out of commerce works, offered a new solution to the copyright clearance challenges faced by cultural heritage institutions, one that seems an improvement to the orphan works provisions. The out of commerce works provisions have a broader scope, and less administrative requirements to comply with.
The Orphan Works Directive and the out of commerce works provisions now coexist as two distinct options that cultural heritage institutions can rely on for clearing rights. They overlap in scope, as it can be argued that all orphan works are necessarily also out of commerce works because commercial exploitation would require permission by an (identified) rightsholder, but offer different approaches.
At the Europeana Network Association’s Copyright Community, a Working Group has been created to exchange information and recommend ways to successfully use the out of commerce works provisions. The working group believes that this system can offer a fit for purpose solution.
Given that the Orphan Works Directive has only ‘partially fulfilled the goal of facilitating the mass digitisation of orphan works’, according to the Commission’s report, it is essential that Member States transpose the out of commerce works provisions in full respect of the scope and requirements set out in the Directive. This includes setting up the mandatory stakeholder dialogues, that is, consultation of rightsholders, collective management organisations and cultural heritage institutions in each sector. If this is done correctly, the twentieth century black hole might eventually be solved by the out of commerce works solution.
Find out more
If you would like to learn more about copyright and digital cultural heritage, join the Europeana Copyright Community and get in touch with [email protected] to join out of commerce works working group.
You can also read our CDSM Directive Pro news series, the recommendations on copyright and its role in the digital transformation of the cultural heritage sector, and learn about other solutions in the UK. There is also a more detailed version of this article available on the Kluwer Copyright Blog.