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.
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).