29 September 2020

IFLA responds to the Orphan Works Survey

The Original Directive

In 2012, the European Union agreed a Directive on Orphan Works (OWD) (e.g. works for which institutions have not identify or located the rightsholder, preventing them from asking for an agreement to use works), to improve legal certainty across the EU in digitising and disseminating these materials.

The Directive’s approach was to define status for the orphan works and design the process to determine this through a “diligent search” for rightholders in the European Union and the European Economic Areas (EEA). Such a diligent search, prior to the use of works, should be done in good faith by the institutions.

IFLA’s reply to the EU-Survey on Orphan Works

The Directive has, however, fallen far short of its goals. In its response, IFLA mentioned its disappointment in seeing a very limited number of works formally recognized as orphan, while institutions face a significant number of orphan works.

IFLA underlined, in particular, that the nature of the list of sources to be consulted in the context of diligent search has been highly damaging, creating burdens libraries are ill-able to bear.

Similarly, the database has proven difficult to use –  this has caused significant harm in terms of effectiveness of the legislation, especially that, as a result, works cannot be considered for cross-border uses.

In any new version, libraries and institutions should be allowed to work directly with the database instead of having to work through national authorities. The database itself should focus on interoperability and usability to make facilitate the work done by institutions and rightsholders.

As the Orphan Works Directive was developed prior the Digital Single Market Directive (EU-DSM), in particular with its the Out-of-Commerce works provisions, IFLA also supported the alignment of the definition of eligible beneficiaries with that in the EU-DSM to avoid additional complexity. This will encompass research, education, cultural institutions and their users, facilitating access to content.

IFLA also suggested that additional uses of orphan works should be permitted under the scope of OWD, including the non-online use of orphan works in public performances or broadcasting of dramatic and cinematographic works, derivatives use of orphan works for non-commercial purposes, and consideration of how to enable commercial use of orphans works. The possibility to re-use of works for education and research should be completely clear as this is one of the crucial reasons for libraries to make the significant investments needed for digitisation.

Furthermore, IFLA underlined the need to ensure that once the copyright of orphan works has expired, institutions should be allowed to use these works freely, including faithful reproduction, as also allowed under Article 14 of the EU-DSM Directive.

We trust that, if these recommendations are taken into account, the EU will be able to make helpful progress towards equitable access to heritage online.

CLM (Committee on Copyright and other Legal Matters), Copyright, Cultural heritage

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