On March 1st, Copyright For Creativity published a Statement on the proposed Orphan Works Directive. The Statement was sent to the MEPs on the Legal Affairs Committee (JURI) and key members of the Internal Market and Consumer Protection (IMCO) and Culture and Education (CULT) Committees. By their very nature orphan works are generally not commercially active, but many are of immense cultural, historical and research value. It is estimated that approximately 30% of the collections of cultural institutions, comprising several hundreds of millions of works of all kinds are currently inaccessible to the public under current European copyright law. In this context, Copyright For Creativity expected a progressive proposal from the European institutions that would:

• ensure that a growing part of Europe’s cultural heritage is accessible to future generations;
• support a flexible and economically sustainable model that promotes large-scale public and private digitalization of our common cultural heritage.

However, without amendment the Orphan Works Directive will fail to support those objectives. In particular, C4C is concerned that the Directive will not help to make progress in the following areas:

Cross-border licensing

The proposed text fails to provide cross-border licensing. This is essential to ensure that systems facilitating mass digitisation projects of orphan works will not be limited to use solely within the silos of the Member State’s respective territories.

Permitted acts of reproduction

The Directive unnecessarily restricts the purposes for which an orphan work can be reproduced. This approach fails to provide the flexibility needed for new uses to develop for the digital environment.

Diligent search requirements

The diligent search requirements are far too restrictive. While we support the concept of diligent search, the requirements are too onerous as regards the timing and level of searching and should not be extended to works embedded or incorporated within the main work.

Record keeping requirements

The requirements in the Directive are overly bureaucratic, technically unrealistic and raise questions in regards to data protection and privacy laws.

Copyright limitations and exceptions

The proposed text has the potential to undermine existing limitations and exceptions to copyright under the EU acquis. Specifically, it is striking that the Directive does not make clear that it should in no case prejudice the exceptions enumerated in Directive 2001/29/EC on the harmonisation of copyright in the information society. Click here for more details on the points above and specific recommendations to improve the language of the Orphan Works Directive.