Digitisation and making available orphan and out-of-commerce works

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27 September 2011

The European Commission is working to further the Digital Agenda and on 24 May put forward a proposal for a Directive on orphan works as the first part of a two-pronged approach to further the development of digital libraries in Europe.  The proposals are different from the suggestions made by the Hargreaves Review, which recommended a form of extended collective licensing scheme to cover use of orphan works including for commercial purposes.  The Commission rejected this approach, proposing a scheme of "mutual recognition" of orphan works instead.

The main features of the proposals are:

  • Harmonised definition of "orphan works", i.e. a work whose rightholder cannot be identified and/or located following a "diligent search"
  • Once a diligent search is carried out in the Member State of first publication or broadcast, it must be recorded in a public database by that Member State, and the other Member States must then recognise such works as orphan works
  • The objective is to facilitate the digitisation of orphan works, primarily for public interest uses by institutions such as libraries, public archives, educational establishments and research institutions, and the proposals would permit the identified institutions to use orphan works for purposes such as digitisation, making it available, indexing, preservation and restoration
  • The proposals cover published written works such as books, journals and newspapers, as well as audio, audiovisual and cinematographic works in collections held by relevant institutions. However, stand alone photographs and other images will not be covered
  • Rightholders would have 5 years from the diligent search to claim remuneration for the use of their work.

The proposals are still at an early stage - a discussion paper was published on 15 September, which invites Member States to express opinions on a number of issues.  More on this will follow as the proposals develop.

As the second part of the approach the Commission has facilitated a Memorandum of Understanding which was signed on 20 September between organisations representing libraries on the one side and publishers, authors and collecting societies on the other side. The MoU contains the Key Principles that they will follow to license the digitisation and making available (including across borders in the EU) of books or learned journals that are out-of-commerce. Out of commerce means out of print/not available in electronic format but not out of copyright and where the rightholder is generally identifiable. It aims to encourage voluntary collective licences to be negotiated in the country of first publication of the works.

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