Evaluating the Orphan Works Directive

Eight years on from the adoption of the Orphan Works Directive, the European Commission has initiated a review of the Directive through a survey on its application. 87 institutions submitted their views, and today we tell you about Europeana’s response.

A promise for mass digitisation

The Orphan Works Directive was adopted in October 2012 and sought to facilitate the mass digitisation projects going on across Europe by removing some copyright barriers. It created an exception to copyright, so that the digitisation and dissemination of orphan works (works still protected by copyright, but whose authors or other right holders are not known or cannot be located) could be done without necessarily seeking permission from every rights holder.

All Member States had to adopt the Directive. However, the Directive’s provisions have a limited scope, cumbersome requirements and some legal uncertainty. While they were to some extent meant to be safeguards for rights holders, this resulted in a Directive with limited applicability, as demonstrated by the low numbers of orphan works declared in the EUIPO database and the testimonies of cultural heritage institutions that they are unsuccessful when using these provisions.

In April 2019, the Copyright in the Digital Single Market Directive was adopted. Among other important provisions, it contained new articles on out of commerce works that seem to offer a more promising solution for mass digitisation projects in the cultural heritage sector, with the possibility of relying on extended collective licensing and a fall-back exception to copyright. While they are currently being implemented by European Member States, there seems to be a clear overlap between their scope and that of the Orphan Works Directive.

From August to October 2020, a survey about the application of the Orphan Works Directive across the European Union was conducted to evaluate the overall efficiency and effectiveness of the Directive as an instrument to promote the digitisation and dissemination of orphan works. The survey is the first step of the review process foreseen in the Directive itself, which could be followed by a report on its application and a possible proposal for its amendment.

Europeana’s answers to the survey

Throughout the survey, we noted that with two relatively overlapping systems in place, cultural heritage professionals are likely to use the one that provides the best solution, with the other one remaining mostly unused. We therefore recommended considering retracting the Orphan Works Directive. We also noted its clear flaws so that the same mistakes would not be repeated again.

We noted the following:

The diligent search for rights holders is problematic, with the sources it is mandatory to consult often irrelevant and difficult to access. Pertinent sources are sometimes not included.
The time and resources that an institution needs to dedicate to conducting a diligent search present challenges, particularly as after completing this process there is still no full guarantee that the institution will always be able to use the work lawfully.
The very limited scope of the Directive in different types of works is a clear downside; including embedded works (for example, the multiple works contained in a scrapbook) in those whose rights holders have to be searched for makes the determination extremely time-consuming and almost impossible.
The Directive does not provide a sufficient level of clarity regarding the compensation that rights holders can claim; this lack of clarity has strongly disincentivised cultural heritage professionals from relying on this scheme.
The EUIPO Orphan Works database can be cumbersome when working with large datasets and is not sufficiently interoperable with the repositories of cultural heritage institutions.

Having two overlapping schemes is likely to raise a lot of uncertainties for cultural heritage professionals, for instance when trying to assess which of the two options to rely on. The out of commerce works provisions in the Copyright in the Digital Single Market Directive, while tackling the same challenges, offer much better solutions and less cumbersome conditions, perhaps to a large extent given the lessons learned from the Orphan Works Directive, and we are hopeful that they will deliver their promise.

To find out more about Europeana’s work on copyright, take a look at our Copyright Community page; if you would like to know more about our survey answers, please contact me (ariadna.matas@europeana.eu).