Documents considered by the Committee on 25 January 2012 - European Scrutiny Committee Contents

3 Orphan works



COM(11) 289

+ ADDs 1-2

Draft Directive on certain permitted uses of orphan works

Commission impact assessment

Legal baseArticle 49, 54 and 114 TFEU; QMV; co-decision
DepartmentBusiness, Innovation and Skills
Basis of considerationSEM of 8 September 2011 and Minister's letter of 7 December 2011
Previous Committee ReportHC 428-xxxii (2010-12), chapter 7 (6 July 2011)
Discussion in CouncilNo date set
Committee's assessmentLegally important
Committee's decisionNot cleared; further information requested


3.1 An orphan work is a work, for example a book, or photograph, protected by copyright, but where the rights holder cannot be identified, or if known cannot be found, even after a diligent search. It can also arise where there are a number of different rights holders in the same work, for example in a film where there will be a number of performers, producers etc, all with distinct rights in the work. If one of these rights holders cannot be found, the same problems arise. As most uses of a copyright work require prior permission of the copyright owner(s) before use, many orphan works, some of which may be culturally and economically significant, cannot be used and are left gathering dust.

3.2 Orphan works which are stored on older formats such as celluloid film or audio tape are in danger of being lost due to the storage medium decaying to a point where it is no longer useable. In the UK, libraries and archives are allowed to make copies of works in their collections for the purposes of archiving but they are not currently allowed to make these copies available to the public. An effective orphan works solution would not only allow the copies to be made they would make them available to the public. Whether or not they should then be allowed to be used for commercial purposes is a point that is not agreed upon by all interested parties.

3.3 This draft Directive builds on the Commission's 2006 Recommendation on the digitisation and online accessibility of cultural content and digital preservation.[9] The creation of a legal framework to facilitate the use of orphan works and their use across borders within the single market is also one of the key actions identified in A Digital Agenda for Europe.[10]

3.4 The main objective is to create a legal framework to ensure the lawful, cross-border online access to orphan works contained in online digital libraries or archives. The proposal does not apply to all copyrighted works. It only applies to works which are published in the form of books, journals, newspapers, magazines or other writings. This includes embedded works, as well as audiovisual and cinematographic works in the collections of film heritage institutions, and audio, audiovisual and cinematographic works contained in the archives of public service broadcasting organisations.

3.5 This aim is to be achieved through a system of mutual recognition of the orphan status of a work. In order to establish the orphan work status, a diligent search must be carried out in line with the requirements specified in the proposed Directive. This will take place in the Member State where the work was first published. Once the diligent search establishes the orphan status of a work, the work in question will be deemed an orphan work throughout the EU, obviating the need for multiple diligent searches

3.6 Results of diligent searches will be displayed on a publicly accessible database; each Member State will be responsible for maintaining this database to record searches in their territories. On this basis, it will be possible to make orphan works available online for cultural and educational purposes without prior authorisation unless the owner of the work comes forward, thus putting an end to the orphaned status of the work.

Previous scrutiny

3.7 Our previous Report sets out the Government's policy on orphan works. In short, the Government told us it welcomed progress at EU level on what was an important issue. The UK would like to see a system that is flexible, proportionate and robust, which enables the use of orphan works in a manner that ensures against any abuse, and which puts in place sufficient safeguards to ensure that rights holder's interests are protected. Any system should be broad enough to take into account the needs of public institutions such as the British Library and the BBC which both have large volumes of orphan works of various types in many different formats. The Government also explained that, last autumn, the Prime Minister commissioned Professor Ian Hargreaves to undertake a review of Intellectual Property and Growth.[11] Within this review, which was published in May last year, Professor Hargreaves made the case for legislation on orphan works. The Government said it was considering its response to Professor Hargreaves' proposals. The Government noted, however, that the proposed Directive did not go as far as the Hargreaves review suggested a solution for orphan works should.

3.8 In the conclusion to our first Report,[12] we noted that the section of the Government's Explanatory Memorandum entitled Legal and procedural issues was devoid of the content required, namely: legal base, legislative procedure, voting procedure, impact on UK law, and Gibraltar. We commented that it was not sufficient simply to state under this heading:

    "It is proposed that the draft directive should be adopted under Article 114 which relates to the operation of the internal market. Article 49 (freedom of establishment) and Article 56 (freedom to provide services) are also referred to in the draft."

3.9 We also asked to be updated on the progress of negotiations, when the positions of other Member States and the Commission had become clearer, and when there were significant developments to report.

Supplementary Explanatory Memorandum of 8 September 2011

3.10 The Parliamentary Under-Secretary for Business, Innovation and Skills at the Department of Business, Innovation and Skills (Baroness Wilcox) deposited a Supplementary Explanatory Memorandum on 8 September 2011. In it she states that the proposed Directive will be adopted on the internal market legal basis of Article 114 TFEU; that in consequence the ordinary revision procedure will be used; that to be implemented the Directive will require an amendment of the Copyright, Designs and Patents Act 1988, which can be achieved by secondary legislation under section 2(2) of the European Communities Act 1972; and that the proposed Directive will apply to Gibraltar to the extent that it impacts upon the freedom to provide services.

Minister's letter of 7 December 2011

3.11 On 7 December the Minister wrote to say that a new proposal drawn up by the Presidency on 6 October was discussed during the Council Copyright Working Group meeting on 13 October. It was further revised on 21 October for discussion at the working group meeting on 27 October and certain issues were discussed further on 10 November. She outlines the following developments in negotiations.


3.12 The impact assessment for the Directive, and other statements, have led many stakeholders to conclude that the aim of the Directive was to facilitate the mass digitisation of cultural and historical collections. However, the Commission has explained to Member States that the aim of the Directive is to enable cross-border cultural use of individual orphan works rather than mass digitisation. This is very disappointing for museums and archives hoping to make use of the Directive, such as the British Library and the BBC. To a degree it therefore reassures publishers and owners of potentially orphan works that any harm to them is likely to be limited. According to the Minister, however, the Directive is an improvement on the current situation in which the risk of exposure to both criminal and civil proceedings for using a potentially orphan work is high. The Directive will allow individual orphan works to be used for cultural purposes without significant legal risk, while protecting rights holders.

3.13 The impact assessment considered the possibility of using extended collective licensing schemes[13] (ECL) to enable mass digitisation, but then concluded by proposing a scheme for the cultural use online of individual orphan works; this allowed for mutual recognition of diligent searches by Member States, provided that they were conducted according to agreed standards. The Commission has therefore said that the issue of mass digitisation/mass clearance of rights will need to be addressed in other ways (such as the Memorandum of Understanding (MoU) on Out of Commerce works signed last September by authors, publishers and collective management organisations for text and image based works). This message is filtering back to stakeholders, the Minister says.


3.14 The draft Directive concerns "certain uses of orphan works undertaken by publicly accessible libraries, educational establishments, or museums, as well as by archives, film or audio heritage institutions and public service broadcasting organisation" (Article 1 paragraph 1). This is qualified by Article 6, paragraph 2 which states these organisations can only use orphan works, "to achieve aims related to their public interest missions, notably preservation, restoration and the provision of cultural and educational access". The revised Presidency compromise proposal adds a further qualification: "Member States should permit certain organisations, namely those referred to in Article 5(2)(c) of Directive 2001/29/EC and film or audio heritage institutions, which operate on a non-profit making basis, as well as public service broadcasting organizations….." (Recital 17).

3.15 The Minister comments that the non-profit making qualification does not apply to public service broadcasters. Recital 17 states that, for the purposes of this Directive, public service broadcasters (PSBs) are those "with a public service remit as conferred, defined and organized by each Member State".

3.16 The focus of the Draft Directive on non-commercial cultural use has become clearer with the deletion of Article 7. There was concern in the working group that it appeared to allow commercial use by publicly accessible libraries, educational establishments, museums, archives, film heritage institutions and public service broadcasters but this use could cause competition problems with other more obviously commercial organisations who are not so enabled.


3.17 The Government has said it will propose a domestic orphan works scheme that includes commercial use. Therefore, it is important to it that the Directive is without prejudice to such arrangements. The UK will continue to work with the Commission and other Member States to clarify issues around mass digitisation/mass clearance of rights and commercial use. The UK will attempt to find ways at EU level to facilitate mass digitisation and mass clearance of rights and to allow for commercial use.

3.18 Some Member States share the UK view that the Directive should not stop Members States from making wider provisions. This view is reflected in the deletion of the word "existing" in of Recital 20: "This Directive should be without prejudice to […] arrangements in the Member States concerning the management of rights such as extended collective licences." The focus here is on ECL so the UK will attempt to change the wording such that it also reflects other arrangements that Member States choose to introduce in addition to the requirements of the Directive. This wording should also be in the actual Articles and not just in the recitals.


3.19 The current draft text specifies that for public service broadcasters only "cinematographic or audiovisual works and audio recordings produced by public service broadcasting organisations before the 31 December 2002" are included in scope. For all the other categories of institution listed above the following are in scope: "Books, journals, newspapers, magazines and other writings" and "cinematographic or audiovisual works and audio recordings".

3.20 The Commission explained that there is no particular significance to the date in 2002 but that they wanted to ensure that there were no incentives on those who actually commission works to allow cinematographic/audiovisual works to become orphaned deliberately. As a result of Member State interventions, other matters that were out of scope originally are now being looked at, such as unpublished works (e.g. Diaries held by museums) and works where one copyright holder is known and locatable but others are not. Photographs have been excluded because the Commission felt that inclusion of this type of work left too many unanswered questions at this stage, but said that the situation will be reviewed annually.


3.21 At present, works that have not been published (or broadcast) before are not included in scope, but both the Presidency and the Commission are interested in finding ways to include at least some unpublished works.

3.22 It has been suggested by some Member States that the criteria for whether a work could be included within the scope of the Directive should be determined using the concept of whether the work is publicly accessible rather than whether (or where) formally published. So if the orphan work is on display to the public in an archive, even if never published in the sense of distributing copies in quantity, it could be deemed to be within scope and available for digitisation and for publication on the archive's website.

3.23 One of the problems related to inclusion of unpublished works is how to determine where the diligent search for possible rights holders should be undertaken. At present Article 3, paragraph 3 states that: "A diligent search shall be carried out in the Member State of first publication or broadcast". Even without the inclusion of unpublished works this approach may be problematical for works produced by rights holders in the EU but first published outside the EU and for works first published on the internet.

3.24 The Government will continue to discuss these issues with the Presidency, other Member States and the Commission to try to resolve them.


3.25 The system of diligent search for the UK's domestic scheme, will form part of the forthcoming consultation. Details of this search would need to be provided to the authorising body so that they could decide whether reasonable efforts in good faith had been made to discover the rights holders. Another possibility is that the authorising body could conduct the diligent search itself in return for a fee from the potential user. The authorising body could publish details of works they are considering declaring as orphan works and offer rights holders the opportunity to identify works as their own. They would also need to maintain an orphan works registry of all works that had been declared orphan after a diligent search. An alternative approach would be for the authorising body to list works that, for example, a museum considers are probably orphans, on a public website, awaiting claim by the rightful copyright owners. If the works were not claimed within a certain period the authorising body could declare them orphan and available for use as such.

3.26 If the DCE finds favour with industry and becomes a reality, it is likely that a search of the DCE would be an essential part of any diligent search. Indeed, a DCE could in effect become the orphan works registry. However, at present it is difficult to stipulate that the proposed DCE should be included as one of the mandatory sources to be searched because it does not yet exist. The UK will endeavour to ensure that the sources to be searched specified in the Directive allow for the inclusion of the DCE at a later stage.

3.27 The EU draft Directive proposes that once a diligent search has been conducted in one Member State, that search should be recognised by other Member States. This would clearly facilitate cross-border use and reduce the costs of using orphan works.

3.28 Lastly, the Minister says she will keep us updated on further progress.


3.29 We thank the Minister for her letter and report fully because of the importance of the subject. We look forward to a further update as negotiations near their end. In the meantime, the proposal is retained under scrutiny.

9   2006/585/EC: OJ No. L 236, p.28, 31.08.06. Back

10   COM(10) 245: see Back

11   See Back

12   See headnote. Back

13   ECL is a type of rights clearance that would allow an authorised collecting society, which represents a critical mass of rights holders in the sector, to license one or all remaining rights holders, including those from whom it does not have direct mandates, unless they have opted out of the scheme. Back

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© Parliamentary copyright 2012
Prepared 6 February 2012