4. Is the issue of orphan material economically important and relevant in practice? If
yes, what technical, organisational and legal mechanisms could be used to facilitate
wider use of this material?
Orphan works pose a huge problem for all sorts of people including publishers,
broadcasters and authors. TNA has experience of running digitisation projects
where much of the time and the budget have been spent on rights clearance. The
Commission is right to recognise that the cost of rights clearance could easily
exceed the cost of digitisation. Orphan works are works known or believed to be
in copyright and whose copyright owner is unknown and (probably) unknowable.
There are plenty of such works in libraries: publishers disappear or are bought
up by others and become untraceable. There are many more in archives. A high
proportion of files in The National Archives contain letters from private
individuals and companies, each of which is a separate copyright work; there is
no prospect whatever in the great of majority of cases of tracing the present
owners of the copyright. Collections of photographs are always an especial
problem, because most images bear no useful data at all and yet they are visually
attractive and people wish to use them. Very few collections provide adequate
information on provenance and fewer still on present copyright ownership.
One possible solution is a new exception in the Information Society directive
(and member states’ laws), covering both the reproduction and communication
rights, permitting the reproduction and use of orphan works so long as
reasonable efforts are taken (and can be shown to have been taken) to trace the
copyright owner and so long as there are mechanisms in place to require
acknowledgement of copyright and compensation (in the form of a fee at the
level that would have been payable had the copyright owner been known at the
start) if the copyright owner comes forward with proof of his rights. It is worth
noting that the USA has recognised this problem and the Library of Congress
has been consulting for a study on it. It might be sensible for the Commission to
do likewise if it feels that it cannot act immediately.