ORPHAN WORKS DIRECTIVE:
OUR CULTURAL HERITAGE IS STILL LEFT OUT IN THE COLD AND OFF-LINE
The Orphan Works Directive that will be voted by the European Parliament on Thursday this week in Strasbourg will not facilitate nor promote mass digitization and large-scale preservation of Europe´s vast cultural heritage. Countless out-of -circulation works whose authors are unknown or not found will remain unaccessible. This has been an historic missed opportunity. While the Directive does provides an EU exception to copyright, it clearly does not fulfill the promise of unleashing the great educational and cultural benefits of removing legal, financial and bureaucratical roadblocks that today prevent access to our common legacy in print, audio and film. http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+REPORT+A7-2012-0055+0+DOC+XML+V0//EN
David Hammerstein, Policy advocate for the TransAtlantic Consumer Dialogue, has stated: “This Directive will not promote mass digitization through easy author search mechanisms, balanced public-private partnerships that promote private financing and the establishment of clear limits on liability and renumeration of works used by public institutions. The copyright-publishers´ lobby has largely succeeded in blocking the advance of any rational mass recuperation of orphan works. Narrow economic interests have prevailed over the public good. European citizens will not have significantly more on-line access to millions of off-the-market works that will continue to collect dust and deteriorate on the shelves of Europe´s libraries and archives. ”
Why the Orphan Directive falls far short:
- It establishes retroactive financial liability for public institutions such as libraries and creates legal uncertainty. This will discourage public institutions from the digitization of their collections by creating fear of expensive future claims if rightholders eventually reappear.
- It strongly restricts private funding of digitization within the context of public-private partnership contracts by practically prohibiting any commercial exploitation of the works by private partners. Private participation is limited to sponsorship or donations. Since public funding for digitization is quite limited, this is a major financial barrier to the on-line recuperation of orphan works. The permitted uses of orphan works are limited to a narrow definition of “the public interest mission of public institutions” preventing reproduction and the recuperation of costs.
- Torturous, expensive and bureaucratical requirements for the search of unknown authors that even includes the search for embedded content (illustrations, designs,..) in each work. This seriously limits large-scale digitization by preventing the use of specialized software (Arrow) for the searches as it cannot find embedded content.
- Record keeping requirements are too detailed and expensive to maintain within the required
databases. It also limits the scope of the directive to works first published in a member state and there is not a clear mandate of mutual recognition of licensed orphan works from one EU member state to another.
David Hammerstein, TACD