Orphan Works in Europe – Results of the Online Consultation


4.4) 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?
– Several replies indicate that the issue of orphan material is a real problem that may be
exacerbated by the convergence of digital media. They stress the economic interest and
potential of orphan works, next to its cultural and historical value. However, the issue is not
equally relevant for all communities: a number of smaller cultural institutions indicate they
are not concerned. Some replies underline the relevance of orphan material for mass
digitisation processes in view of the cost intensity of clearing rights. The replies that identify
orphan material as a problem call for a clear legal position for the use of such material to ease
the handling costs. Reference is also made to a recent major US consultation on this issue.
– Proposed solutions for handling orphan works vary widely: they range from changing
copyright legislation to developing better tools for locating right owners and making a
common European code for dealing with this type of material. Several replies propose to
generalise the Nordic model of extended collective licensing for orphan works, whereas other
replies recommend the French model as operated for audiovisual orphan works. The Canadian
model is also mentioned, in which collecting societies do not play a role. A reserve fund is
suggested to compensate authors if they are found after all. Some replies want to go much
further, e.g. by making orphan works generally useable until a copyright holder opposes
(eventually after a certain period a work has been advertised as an orphan work), or by
creating a legal ‘safe haven’ for people using orphan works. Rightholders and collecting
societies are generally opposed to legislative change to accommodate the orphan works issue.
– The absence of an overview of orphan works is seen as a serious problem. Up-to-date
databases of orphan material would help. For running these databases the public could be
involved, as well as the collecting societies.
– The attention is drawn to the need to prevent a further extension of the orphan works
problem: proposed solutions range from expanding the public domain (e.g. by reducing the
term of protection) to the use of technical mechanisms for identification of the owner and the

Comment I cannot understand why this problem is underestimated by German archives (e.g. see the Bundesarchiv statement).

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