COMMISSION STAFF WORKING PAPER SUMMARY OF THE IMPACT ASSESSMENTONTHE CROSS-BORDER ONLINE ACCESS TO ORPHAN WORKS   COMMISSION STAFF WORKING PAPER SUMMARY OF THE IMPACT ASSESSMENTONTHE CROSS-BORDER ONLINE ACCESS TO ORPHAN WORKS
Date: 2011-05-24
Institutions: European Commission
Subjects: copyright, cultural heritage, information system, market approval, virtual library

EUROPEAN COMMISSION 

Brussels, 24.5.2011 
SEC(2011) 616 final 

COMMISSION STAFF WORKING PAPER 

SUMMARY OF THE IMPACT ASSESSMENT 

ON 

THE CROSS-BORDER ONLINE ACCESS TO ORPHAN WORKS  

Accompanying the document 

Proposal for a 
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on certain permitted uses of orphan works 

{COM(2011) 289 final} 
{SEC(2011) 615 final} 

 
 
 
 
  
 
 
 
 
 
Executive Summary 

The  impact  assessment  deals  with  copyright  authorisations  necessary  to  make  so-called 
"orphan  works"  available  online  as  part  of  European  and  national  digital  libraries.  Orphan 
works are works whose copyright owner cannot be identified or traced. 

The impact assessment was discussed at three meetings of an inter-service steering group on 
11 March, 16 and 27 April 2010. It was discussed before the Impact Assessment Board (IAB) 
on 16 June 2010. The IAB issued its opinion on 21 June 2010. 

Problem Description 

Prior  authorisations  are  necessary  to  make  works  protected  by  copyright  available  to  the 
public in an online digital library. When the relevant copyright owner cannot be identified or 
found the works in question are orphan works. Consequently, the necessary authorisations to 
make  these  works  available  online  cannot  be  obtained.  Libraries,  archives  and  other  public 
service institutions that make works available online to the public without prior authorisation 
risk infringing copyright. 

Policy context 

The main objective of this proposal is to remedy the absence of a legal framework governing 
the lawful, cross-border online access to orphan works contained in libraries and archives. 

The impact assessment explains that, given the urgency to boost the development of Europe's 
digital libraries and archives and its capacity to foster search and indexing technologies, the 
focus of the legislative proposal will be on works which are published in the form of books, 
journals,  newspapers,  magazines  or  other  writings,  including  works  embedded  in  them,1  as 
well as audio, audiovisual and cinematographic works. Improving online search facilities will 
increase the accessibility of millions of sources found in Europe's libraries on both a national 
and cross-border basis. 

This  initiative  builds  on  the  Commission's  2006  Recommendation  on  the  digitisation  and 
online  accessibility  of  cultural  content  and  digital  preservation.2  Despite 
the 
Recommendation,  only  a  handful  of  Member  States  have  implemented  orphan  works 
legislation.  The  few  existing  national  solutions  are  circumscribed  by  the  fact  that  they  limit 
online access to citizens resident in their national territories. 

The creation of a legal framework to facilitate the cross-border digitisation and dissemination 
of orphan works in the single market is also one of the key actions identified in the Digital 
Agenda for Europe3 which is part of the Europe 2020 Strategy.4 

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4 

By contrast, it would be extremely difficult to identify the owners of entire collections of photographs 
whose provenance is unknown. The lack of attribution or other identifying information makes diligent 
search particularly difficult. Moreover, the technology to carry out visual searches as compared to text 
based searches is not as highly developed and is very costly.  
Commission  Recommendation  2006/585/EC  of  24  August  2006  on  the  digitisation  and  online 
accessibility of cultural content and digital preservation (OJ L 236, 31.8.2006, p. 28-30). 
A Digital Agenda for Europe - COM(2010) 245. 
Europe 2020: A strategy for smart, sustainable and inclusive growth: 
http://ec.europa.eu/eu2020/index_en.htm 

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Subsidiarity and proportionality 

A  legislative  proposal  in  the  form  of  a  framework  directive  is  necessary  because  voluntary 
approaches,  notably  Commission  Recommendation  2006/585/EC  of  24  August  2006,  have 
not  produced  the  desired  result  (subsidiarity).  In  addition,  the  coexistence  of  uncoordinated 
national approaches governing orphan works in online libraries makes it difficult for a library 
to make orphan works available across EU Member States.5 

Because the orphan work problem is a major impediment to the creation of digital libraries, a 
coherent EU framework for cross-border access to orphan works is the least intrusive option 
to  achieve  the  desired  result  (proportionality).  All  other  approaches  would  require 
significantly  more  administrative  overhead  and  licensing  infrastructures  just  for  orphan 
works. 

Analysis of options  

The  impact  assessment  analyses  six  options:  (1)  do  nothing,  (2)  a  statutory  exception  to 
copyright,  (3)  extended  collective  licensing,  (4)  an  orphan-specific  licence  granted  by 
collecting  societies,  (5)  an  orphan-specific  licence  granted  by  a  public  body,  and  (6)  the 
mutual recognition of national solutions regarding orphan works. 

All  policy  options  (except  Option  1)  are  premised  on  the  adoption  of  a  directive  that  will 
require  all  Member  States  to  enact  specific  orphan  works  legislation  within  a  specified 
timeframe.  All  policy  options,  except  Option  3,  are  premised  on  the  requirement  that  a 
diligent  search  is  necessary  prior  to  the  making  available  of  an  orphan  work  in  an  online 
digital library. 

Option 3, the model of "extended collective licenses" assumes that, once a collecting society 
authorises a library to make books available on a website, this license, by virtue of a statutory 
presumption, will cover all orphan works in that category. The collecting society is considered 
to  represent  such  "outliers"  independent  of  whether  it  has  carried  out  a  diligent  search  to 
identify  or  locate  the  author.  The  Nordic  model  is  mostly  promoted  by  the  Nordic  Member 
States, although it is acknowledged that the absence of a diligent search makes this model less 
suitable as a European option based on mutual recognition. The absence of mutual recognition 
also implies that an extended collective license will only be valid in the national territory in 
which the statutory presumption applies. 

The specific license for orphan works (Option 4) provides libraries and the other beneficiaries 
with a high level of legal certainty against damage claims by reappearing owners. This option 
cumulates  the  diligent  search  to  determine  the  orphan  status  with  a  specific  licensing 
arrangement pertaining to orphan works. 

The government license covering orphan works (Option 5) constitutes a public certification of 
the  diligent  search  and  thus  grants  a  high  level  of  legal  certainty  to  the  digital  library.  This 
creates  an  administrative  burden.  This  is  why  earlier  incarnations  of  this  system  have  had 
limited impact and are not used in relation to large scale digital library projects. 

5 

In some Member States, e.g. France, preparatory work on a legislative solution expressly acknowledges 
that  a  European  solution  is  required  -  Conseil  Supérieur  de  la  Propriété  Littéraire  et  Artistique 
Commission sur les œuvres orphelines, p. 19. 

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The statutory exception (Option 2) would avoid the burden of  obtaining a  copyright license 
but maintain the prior diligent search. However, this option provides for less legal certainty as 
there is no third party certification of the diligent search. 

The  advantage  of  an  approach  based  on  mutual  recognition  of  national  approaches  to  the 
making  available  of  orphan  works  (Option  6)  is  that  libraries  and  other  beneficiaries  would 
have  legal  certainty  as  to  the  "orphan  status"  and  would  be  permitted  to  make  these  works 
available  online.  Mutual  recognition  ensures  that  the  digital  library  would  be  available  to 
citizens across Europe. The mutual recognition option is mostly advocated by the publishing 
community and some Member States. The publishers believe that a system that provides for 
the  authorisation  to  make  orphan  works  available  online  cannot  dispense  with  an  a  priori 
diligent search. 

Implementation, Monitoring and Evaluation  

This  proposal's  key  objective  is  to  allow  libraries  and  similar  bodies  which  have  public 
interest aims like education or the preservation and diffusion of cultural heritage to lawfully 
make available and reproduce orphan  works.  The implementation of the proposal should be 
conducted in line with the policy objectives and international copyright law. 

The  Commission  will  monitor  the  short,  mid  and  long  term  impacts.  In  the  short  term,  the 
Commission will ensure that orphan works legislation is adopted in all the Member States. In 
the  mid-term,  the  Commission  will  assess  whether  the  system  of  mutual  recognition  will 
provide for pan-European access to digital libraries from anywhere across the EU. In the long-
term, the Commission will assess the extent to which orphan works legislation has contributed 
to the overall development of pan-European digital libraries. 

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