Cross-border Online Access to Orphan Works

May 30, 2011

The ‘orphan work’ problem is considered to be a major impediment to the creation of digital libraries. The EU Commission has published a proposal for a new Directive on certain permitted uses of such works. 

The proposal contains rules on how to identify orphan works. It provides that the user has to conduct a diligent search to find the copyright holder. In this search, the user should rely on sources such as databases and registries like ARROW, the Accessible Registry of Rights Information and Orphan Works.  

If the diligent search does not yield the identity or location of the copyright holder, it is proposed that the work be recognised as an orphan work. This status, by virtue of mutual recognition, would then be valid across the EU. The proposal also foresees that there will be a generally accessible record of all recognised orphan works.

The proposal is for the Directive to establish the uses that can be made of the orphan works and the conditions for such uses depending on their nature.  

The proposal would appear to be entirely compatible with the Digital Copyright Exchange (DCE) proposed by the Hargreaves Review, indeed the DCE would no doubt be one support for the mechanics of this EU proposal. 

The Commission claims that the proposal should make a major contribution to the development of various European digital library initiatives and their accessibility for everyone throughout the EU. Clear rules on what works can be posted online as orphan works will also provide the beneficiaries of the Directive – not only libraries, museums and archives but also film heritage institutions and public service broadcasters – with a sound legal framework that safeguards them against claims of copyright infringement. The degree of legal certainty that can be achieved will exceed any that can be achieved on the basis of existing private agreements.

The Directive would require there to be rules providing for clear methods of redress if the true rights holder reappears and wishes to assert his or her copyright, thus ending the orphan work status.