6 Orphan works |
+ ADDs 1-2
|Draft Directive on certain permitted uses of orphan works|
Commission impact assessment
|Legal base||Article 49, 54 and 114 TFEU; QMV; co-decision
|Department||Business, Innovation and Skills
|Basis of consideration||Minister's letters of 14 May and 10 July 2012
|Previous Committee Reports||HC 428-xlviii (2010-12), chapter 3 (25 January 2012); HC 428-xxxii (2010-12), chapter 7 (6 July 2011)
|Discussion in Council||September 2012
|Committee's assessment||Legally important
6.1 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.
6.2 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 but also 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.
6.3 This draft Directive builds on the Commission's
2006 Recommendation on the digitisation and online accessibility
of cultural content and digital preservation.
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.
6.4 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
6.5 This aim is to be achieved through a system of
mutual recognition of the orphan status of a work. In order to
establish 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
6.6 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.
6.7 Our previous Reports
set 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.
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.
Minister's letter of 14 May 2012
6.8 The Parliamentary Secretary for Business, Innovation
and Skills (Baroness Wilcox) writes to inform the Committee that
further progress in the negotiations has been made in Member State
meetings and in discussions with stakeholders and the Commission.
6.9 A new proposal drawn up by the Presidency on
10 February was discussed during the Council Copyright Working
Group meeting on 17 February. A further revision was issued on
2 March; discussions continued through the working group and the
proposal was considered by COREPER on 14 March; COREPER voted
to begin trilogue discussions with the Commission and European
6.10 The proposal was attached to the Minister's
letter. It could not be reported at the time because it was a
limité document, but it has now been superseded
by a more recent version, the summary of which we report further
below. The Minister provides the following commentary on the text
attached to her letter of 14 May.
EU VS. NATIONAL MEASURES
6.11 We had asked whether action at EU level would
be more effective than national measures. The Minister says the
Government fully supports the specific goal of the Commission's
Digital Agenda for Europe, namely the creation of a legal framework
to facilitate the digitisation and dissemination of cultural works
in Europe through a Directive on orphan works. A solution at EU
level to the problems of access to orphaned works (and one that
meets the needs of UK interests) is needed as it would enable
pan-European access to many important historical and cultural
works. The Hargreaves Review of Intellectual Property and Growth
recommended that the Government should legislate to enable licensing
of orphan works and the Government broadly agrees with the Review's
recommendations. As a result, the UK Government has recently consulted
on proposals for domestic legislation that would permit the use
of orphan works. This consultation explored options for enabling
use of a wide range of orphan works for both commercial and non-commercial
use. The current text of the EU proposal preserves the right of
Member States to make provision for the use of orphan works that
go beyond any EU solution. Whilst a broader European Directive
could enable greater use of works across the 27 Member States,
the current EU text represents a compromise proposal. The domestic
and EU proposals should be seen as complementary with the EU proposal
representing a first step in dealing with this important issue.
UNPUBLISHED WORKS AND PHOTOGRAPHS
6.12 An orphan works scheme that limited authorisation
to only published or broadcast works could have the effect of
restricting access to culturally and historically valuable works
that have never been published or broadcast. The inclusion of
unpublished works (war diaries for example) into the scope of
the Directive will enable greater public access to many important
documents and recordings. The rights of any rights holders remain
of high importance and the Directive does not diminish those rights.
A provision that unpublished works must already have been made
publicly accessible with the permission of the right holders has
been included by Member States. Only where it could reasonably
be assumed that the rights holders would not oppose their use
under the terms of the Directive will the provisions of the Directive
apply. In addition, the provisions of the Directive do not affect
legislation relating to, inter alia, data protection and
6.13 There is a strong case for the inclusion of
photographs in an orphan works Directive. For example, around
90% of still photographs in UK museums are believed to be orphaned.
The photographic industry has a number of concerns; some, centred
on the commercial aspects of the use of orphan works, but also
on the relative ease with which photographs can become orphaned,
particularly in the digital age.
6.14 However, the Minister reminds us that photographs
are outside the scope of the proposed Directive (other than those
contained within other works, books for instance). The Directive
does however include a clause providing for an annual report on
the possibility of widening the scope of the Directive in the
future, therefore photographs may be considered at that time.
MEMORANDUM OF UNDERSTANDING: KEY PRINCIPLES ON THE
DIGITISATION AND MAKING AVAILABLE OF OUT-OF-COMMERCE WORKS
6.15 Turning to the point the Committee made on the
Memorandum of Understanding (MoU), out-of-commerce works differ
from orphan works: out-of-commerce works involve a conscious decision
not to make them available for commercial reasons as opposed to
orphan works which are the result of lost or unknown information
as to who is the rights holder. The roots of the MoU lie in the
high transaction costs for users that often arise from the need
to seek multiple permissions from right holders in the course
of the mass digitisation of copyrighted works. The MoU and the
proposed Directive both contribute to the goals of the Commission`s
Digital Agenda, but the two initiatives are separate and serve
different needs the MoU will contribute to mass digitisation
of cultural works, but will not necessarily increase access to
orphan works. For instance, the MoU would cover a book where the
rights holder is known, but the book is not commercially available.
The MoU would not enable access to a book where the rights holder
was unknown or could not be found.
MEMBER STATE OF FIRST PUBLICATION
6.16 We also asked for an update on our progress
in seeking clarification on identifying more clearly the Member
State of first publication. The latest draft states that the diligent
search shall be carried out in the Member State where the work
was first published or broadcast. The introduction of unpublished
works into the scope of the Directive highlighted a problem relating
to identification of the state of first publication. The Commission's
proposed solution is that in the case of unpublished works the
diligent search shall be carried out in the Member State where
the organisation that made the work publicly accessible is located.
A further safeguard provides that, where necessary, a diligent
search for any work published or not shall include
consultation of information available in other countries if appropriate.
DIGITAL COPYRIGHT EXCHANGE
6.17 We asked for an update on the findings of the
feasibility study on developing a UK Digital Copyright Exchange
(DCE) and the Government`s response. Phase 1 of the independent
feasibility study into developing a DCE concluded, on the basis
of the evidence collected, that copyright licensing processes
in the UK compare well with other countries in the world but there
is much that still could be improved.
6.18 For instance, copyright licensing could be made
more streamlined, easier and cheaper to use, especially for the
small and medium-sized enterprises (SMEs). Phase 2 of the Study
began in April 2012 and will report to Government before the 2012
summer Parliamentary Recess. The second phase will focus on seeking
solutions to the issues with copyright licensing identified in
the report; the DCE will be one of the potential solutions examined.
PUBLIC INTEREST MISSION
6.19 We asked for views on the amendments to Recital
17 and Article 7 particularly in the context of distinguishing
between commercial and non-commercial use of orphan works. It
is true to say that there is no specific definition of commercial
use or otherwise, but the intention of the Directive is focussed
clearly on providing access to cultural works that are held by
institutions with a clear public interest mission. Whilst amendments
have been made to allow the use of public private partnerships
and to allow for the charging for access to such works (as many
museums in the EU do for physical exhibits), the draft Directive
is clear that these allowances must not impose any restrictions
on use nor grant the commercial partner any rights of use and
control of those works. The Government believes that it is important
that there is a fair balance between the rights of copyright owners
and access to culturally important works. The caveats in the proposal
should achieve that balance.
6.20 The proposed Directive provides for a diligent
search of a number of specified sources. The results of the search
and in the event that the work is found to be orphan
the subsequent uses made of the work will be recorded in a publicly
accessible database. The UK Government`s copyright consultation
explored similar issues in respect of a domestic orphan works
scheme. It proposed a solution that would enable the use of individual
orphan works after a diligent search which was then confirmed
by an authorising body such as a collecting society or a public
body like the Copyright Tribunal. The Intellectual Property Office
is currently analysing the results of the consultation which closed
on 23 March. The Minister offers to provide us with further information
once the analysis has been completed. However, in terms of this
EU proposal the circumstances and sources for diligent search
are made clear within the Directive and its annex.
SINGLE EUROPEAN DATABASE
6.21 In order to address some Member States' concerns
on the costs of a database at national level, the Commission has
introduced a proposal for a single European database to record
the diligent searches and uses of orphan works. The proposal is
for the database to be hosted by the Office for Harmonisation
in the Internal Market (OHIM), the body responsible for the Community
Trade Mark and certain aspects of enforcement. The Council Legal
Service consider the proposal to be legally sound and whilst the
substance of the proposal could be considered sensible, further
consideration is needed on whether the production and management
of a database on orphan works falls within OHIM`s current enforcement
vires. The Government awaits further news of the Council`s examination
of the legal issues.
The Minister's letter of 10 July 2012
6.22 The Minister writes again to say:
"[a]t the informal Trilogue on 6 June, an agreement
was reached on the text of the proposed Directive and this was
issued as a document by the Presidency on 8 June (Annex A). The
document seeks approval of the final compromise text from the
Permanent Representatives Committee. You are asked to note that
although the attached document carries a 'Limité' marking,
the Council Secretariat has informed Member States that this may
"Following any minor legal and linguistic clarification,
the text in the attached document is likely to come before the
Permanent Representatives Committee in September; that Committee
is expected to vote in favour and the proposal quickly moved to
Council. In order that the UK is able to vote in favour of the
proposed Directive, I request that you lift your scrutiny reserve.
I will of course be happy to answer any questions on the text
that the Committee might have."
6.23 Her officials have informally followed up this
letter with a helpful summary of the substantive provisions of
- The organisations that can
use the Directive remain limited to non-commercial use and public
service broadcaster but include audio archives as long
as they have a public-interest mission.
- Public Private Partnerships are allowed in order
to digitise collections and make them available as long as the
private company does not gain any rights over the works. Cultural
organisations are allowed to generate revenues to make orphan
works available and to pay for digitisation costs.
- Mutual recognition of other Member States' processes
and designation of orphan works remains the key to the operation
of the Directive between Member States.
- The Directive excludes the use of works (cinematic,
audiovisual and phonograms) in the archives of public service
organisations that are not produced or commissioned by them. This
is designed to ensure that works are not orphaned falsely in an
attempt to use them unfairly or without permission.
- Unpublished/unbroadcast works are included, but
only if it is reasonable to assume that the "lost" rights
holder would not have opposed their use for example if
he or she knowingly gifted a batch of works for use in a museum
and had not explicitly forbidden certain uses. This should help
to assuage concerns over unpublished works and what they may be
- The text now clarifies that the diligent search
must be done in "good faith" and that an extensive list
of sources (in the annex) must be consulted. Researchers also
must search in other countries if it is likely that rights holders
may be there. This helps to safeguard the diligent search process
by providing parameters by which it is conducted.
- The text now clarifies that search records must
be retained and that a single-European database will be developed
to house such information. This database will be hosted by the
Office for Harmonisation in the Internal Market (OHIM) (the European
Trademark office that also has some responsibility for the prevention
of counterfeiting and piracy of IP), which has the resources,
skills and legal vires to perform this function. This is
a welcome development which allows an easy point of contact for
authors and researchers to check searches that have already been
performed and the works that are being used.
- The text clarifies that, in cases where there
is a multiplicity of rights holders for a work but some are known
and others unknown, known rights holders retain their rights intact
and can exercise them.
- The text allows for compensation at a point in
time decided as most appropriate by the Member State concerned.
As a consequence, this can match existing national practices.
- The text clarifies that embedded works, for example
photographs in a book, will need to be searched for as well.
6.24 We thank the Minister for her letters and
report the progress in negotiations to the House.
6.25 We have no further questions to ask and so
clear the document from scrutiny.
10 2006/585/EC: OJ No. L 236, p.28, 31.08.06. Back
COM(10) 245: see http://ec.europa.eu/information_society/digital-agenda/documents/digital-agenda-communication-en.pdf. Back
See headnote. Back