Five Documents considered by the Committee on 6 July 2011 - European Scrutiny Committee Contents

7 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
Document originated24 May 2011
Deposited in Parliament2 June 2011
DepartmentBusiness, Innovation and Skills
Basis of considerationEM of 17 June 2011
Previous Committee ReportNone
To be discussed in CouncilNo date set
Committee's assessmentLegally important
Committee's decisionNot cleared; further information requested


7.1 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.

7.2 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.

7.3 This draft Directive builds on the Commission's 2006 Recommendation on The digitisation and online accessibility of cultural content and digital preservation.[41] 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 the Digital Agenda for Europe.[42]

The document

7.4 The main objective of this proposal 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.

7.5 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.

7.6 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.

7.7 The content of each of the proposed Articles is as follows:

—  Article 1 sets out the scope and subject matter of the Directive as a variety of material contained in public libraries, educational establishments, museums and archives as well as in the collections of film heritage institutions and archives of public service broadcasting organisations. In the print sector, it also covers visual works such as photographs and illustrations contained in these published works;

—  Article 2 contains the definition of an orphan work. The definition of an orphan work incorporates the requirement of a diligent search;

—  Article 3 explains how the diligent search is to be carried out by those who are permitted to use orphan works. Article 3 clarifies that a diligent search need only be carried out in the Member State of first publication of the work;

—  Article 4 establishes the principle of mutual recognition whereby a work deemed to be an orphan work after a diligent search carried out in accordance with Article 3 shall be considered an orphan work in all Member States;

—  Article 5 concerns the possibility to put an end to the orphan work status;

—  Article 6 enumerates the uses that the named beneficiaries are permitted to undertake with respect to orphan works (to make them available to the public, within the meaning of Article 3 of Directive 2001/29/EC, and to reproduce such works, within the meaning of Article 2 of Directive 2001/29/EC, for the purposes of achieving their public interest mission ); and

—  Article 7 specifies how Member States may permit certain additional uses under specific conditions.

The Government's view

7.8 In her Explanatory Memorandum of 17 June, the Parliamentary Under-Secretary of State and Minister for Intellectual Property at the Department for Business, Innovation and Skills (Baroness Wilcox) says that the Government welcomes progress at EU level on this 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 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.

7.9 She informs us that, last autumn, the Prime Minister commissioned Professor Ian Hargreaves to undertake a review of Intellectual Property and Growth.[43] Within this review, which was published on 18 May, Professor Hargreaves made the case for Government to legislate on orphan works. The Government is considering its response to Professor Hargreaves' proposals. The Minister notes, however, that the proposed Directive does not go as far as the Hargreaves review suggests an orphan works solution should. The Directive allows for a limited use of orphan works by libraries and archives, whereas Professor Hargreaves suggests that a mass licensing scheme for orphan works should be implemented, including for commercial use, based around the principles of extended collective licensing (ECL). ECL is a form of collective rights management where collecting societies that act for the majority of rights holders in a particular sector are given a statutory permission to act on behalf of all rights holders in that sector i.e. even when they have not been given express permission by the rights holder. ECL requires rights holders who do not want a collecting society to act on their behalf to opt out, whereas non-ECL models are based on rights holders opting in to collecting societies.

7.10 The Directive recommends the non-commercial uses of works by libraries. It does not recommend remuneration being held back for the rights holder should they emerge after their work has been used in this way. The Minister comments that UK rights holders are likely to want to see a fair market rate collected and held against the possible return of any absent rights holder, even if the work has been used in a non commercial way.

7.11 The Directive allows the commercial use of works (in exchange for remuneration to be held against the return of rights holders) but also notes that doing this would put some extra burdens on organisations wishing to use works in ways that are outside of their "public interest missions". It would be for Member States to define in their domestic interpretations of the Directive which uses fell outside public interest missions. Furthermore, it is not explained how the remuneration required for such uses should be calculated, and this issue may need further consideration.

7.12 The Directive only allows organisations to use specific types of works, dependent on the primary function of that organisation. Thus libraries are only allowed to use literary works and are not allowed to use audio recordings. This may be restrictive and for example, would not allow for the unlocking of many of the works held by the British Library or indeed the BBC.

7.13 The Directive includes criteria that would define what constituted a "diligent search" although it is left up to Member States to define which sources should be included in this search prior to a work being defined as orphan. Professor Hargreaves suggests that the UK sets up a digital copyright exchange and suggests that the exchange should be included in the list of sources searched for information on a potential orphan work.

7.14 The Directive has a requirement to record the results of diligent searches that are made in publicly accessible databases. The Government will need to consider how this will work in practice and which organisation(s) will be tasked with setting up and maintaining the necessary databases.

7.15 The Directive contains arrangements for a mutual system of recognition across Member States. Once a work is classed as orphan in one Member State, it is considered as orphan in all Member States. This approach could however bring with it some difficulties. Recital 15 of the Directive states that in order to avoid duplication of searches, the search for the rights holder should be carried out in the Member State that first published or broadcast the work in question. Under Article 4, once that Member State had classed a work as orphan, it may be classed as orphan in all other Member States. If a work has no record of first publication or broadcast, it will not be possible to determine the country in which the diligent search should take place. If the search is then done in the wrong country then it may be classed as orphan incorrectly. This may need to be addressed in more detail by the final Directive.

7.16 The limited scope of the Directive may affect the ability of Member States to make wider provision for the use of orphan works than is allowed by the Directive.

7.17 The financial implications of the proposal as it stands will be minimal, the Minister says. There would be a cost involved in digitising works which would be borne by libraries and archives but as digitisation would not be a compulsory requirement; there is no burden on them as such. The cost of digitisation will be assessed by an impact assessment when the proposals approach finalisation.

7.18 The diligent search requirements of the Directive will require the searching of various databases (as yet unknown). The cost of setting up and maintaining these databases would have to be considered as well as which agencies or organisations would be responsible for maintaining them. All possible financial implications would be explored in detail in an impact assessment once the Directive is finalised.

7.19 The requirement on Member States to record the results of diligent searches will carry with it a cost. At present no such database exists in the UK and the cost of setting one up and maintaining it would have to be considered. An example of what such a database may look like, the ARROW project (Accessible Registries of Rights Information and Orphan Works) may be a good starting point. This is not however funded by Government so any financial implications of using it or basing idea upon it would have to be considered.


7.20 We thank the Minister for her helpful Explanatory Memorandum, but note that the section entitled Legal and procedural issues was devoid of the content required, namely: legal base, legislative procedure, voting procedure, impact on UK law, and Gibraltar. It is 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."

7.21 We would be grateful to be updated on the progress of negotiations in due course, when the positions of other Member States and the Commission have become clearer, and when there are significant developments to report.

7.22 In the meantime, we retain the proposal under scrutiny.

41   2006/585/EC: OJ No. L 236, p.28, 31.08.06. Back

42   COM(10) 245: see Back

43   See Back

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Prepared 14 July 2011