Source: EURLEX
Language: en
Format: md

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# 52011SC0616

**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 /\* SEC/2011/0616 final - COD 2011/0136 \*/**

  

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 Europe[3]
which is part of the Europe 2020 Strategy.[4]

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.

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.

[1]               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.

[2]               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).

[3]               A Digital Agenda for Europe - COM(2010) 245.

[4]               Europe 2020: A strategy for smart,
sustainable and inclusive growth:      
http://ec.europa.eu/eu2020/index\_en.htm

[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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