Documents considered by the Committee on 17 July 2012, including the following recommendation for debate: European Globalisation Adjustment Fund - European Scrutiny Committee Contents

6 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 considerationMinister's letters of 14 May and 10 July 2012
Previous Committee ReportsHC 428-xlviii (2010-12), chapter 3 (25 January 2012); HC 428-xxxii (2010-12), chapter 7 (6 July 2011)
Discussion in CouncilSeptember 2012
Committee's assessmentLegally important
Committee's decisionCleared


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.[10] 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.[11]

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 organisations.

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.

Previous scrutiny

6.7 Our previous Reports[12] 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.[13] 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 Parliament.

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.


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.


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 privacy.

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.


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.


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.


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.


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.


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 be disregarded.

"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 proposal:

  • 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 used for.
  • 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

11   COM(10) 245: see Back

12   See headnote. Back

13 Back

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© Parliamentary copyright 2012
Prepared 31 July 2012