Europe needs an efficient pan-European system that guarantees users full access to orphan works. Both mandatory exceptions and extended collective licensing in combination with a guarantee fund should be explored. Any due diligent search requirements should be proportionate to the ability of the users to trace the rights holders.
The orphan works problem is in urgent need of a solution that unlocks the benefits of access to these works. Across Europe digitization projects are undertaken that produce large quantities of digitized versions of orphan works that are not available to the general public. Neither the authors nor the general public benefit from the orphan work status of these works. Since most mass digitization projects are undertaken by publicly funded memory institution any 'solution' for this problem that includes a diligent search requirement amounts to large scale waste of public resources. Instead of establishing diligent search guidelines mandatory exceptions and extended collective licensing in combination with a guarantee fund need to be explored to allow for the non-commercial dissemination of orphan works.
Orphan works are those whose rightsholders cannot be identified or located and, thus, whose rights cannot be cleared. At the EU level, two major consultations were organized to define the actual size of the orphan works problem. The consultations indicated that the issue is perceived by several audiovisual and cultural institutions as a real and legitimate problem. In any event, neither of these consultations has generated firm quantitative data. According to a recent study published by the European Commission (“Vuopala Study”), a conservative estimate puts the number of orphan books in Europe at 3 million. However, some estimates put the number of orphan woks well over forty per cent of all creative works in existence. Another recent study has calculated volumes of Orphan Works in collections across the UK’s public sector well in excess of 50 million. For certain specific works as photographs, the volumes of orphan works seem to increase. The Gowers Review of Intellectual Property claims that from the total collection of photographs of 70 institutions in the UK, around 19 million, the percentage of photographs where the author is known, other than for fine art photographs, is 10 per cent.
Publishers, film makers, museums, libraries, universities, and private citizens worldwide face daily insurmountable hurdles in managing risk and liability when a copyright owner cannot be identified or located. Too often, the sole option left is a silent unconditional surrender to the intricacies of copyright law. Many historically significant and sensitive records will never reach the public. Society at large is being precluded from fostering enhanced understanding. Daily, steadily, small missing pieces of information prevent the completion of the puzzle of life. The Vuopala Study shows, then, even higher percentage for other categories of works, especially among photographs, and audiovisual works. In addition, the report shows cumbersome transaction costs in the right clearance process. Besides the material costs of clearing rights, the transaction costs of the clearing process are extraordinarily augmented by the resources needed. Absent efficient sources of rights information, the clearing process can take from several months to several years. In many instances the cost of clearing rights may amount to several times the digitization costs.
The cultural outrage of orphan works is a by-product of copyright expansion, retroactive effect of some copyright legislation, and intricacies of copyright law. As a consequence of copyright temporal extension many works that have been out of print for decades may still be under copyright protection. The long out-of-print status of copyrighted work makes more and more difficult to retrieve the necessary data to clear rights in others’ works. In case of highly perishable cultural artifact, such as audio and video recordings, the tragedy for our cultural heritage is even more substantial because old works with great historical value will root away and will be lost forever.
A study from the Institute for Information Law at Amsterdam University (IViR) has identified the increased interest in the issue of orphan works in the following factors: (1) the expansion of the traditional domain of copyright and related rights, (2) the challenge of clearing the rights of all the works included in a derivative works, (3) the transferability of copyright and related rights, and (4) the territorial nature of copyright and related rights. In particular, in Europe the problem gets further tangled up by the difficulty to know whether the duration of protection has expired. The complicacies related to copyright term extensions, such as war extensions, blur the contours of the public domain, therefore making more uncertain and costly any attempt of clearing copyrights. This is a further intricacy burdening the clearance of so called “orphan works” in Europe.
However, the exact dimension of the orphan works problem can be only conveyed by looking at the relation with digitization projects. The unfulfilled potentials of digitization projects worsen the cultural outrage of orphan works in terms of loss of opportunities and value that may be extracted from the public domain. If the temporal extension of copyright has exacerbated and augmented the dimension of the orphan works problem, only the acquired capacity of digitizing our entire cultural heritage has fully unveiled the immense loss of social value that orphan works may cause. The Vuopala Study strongly supports this conclusion. The study gathered responses from twenty-two institutions involved in the digitization of works. The high number of orphan works together with high transaction costs may represent an overwhelming burden for several digitization projects. The study concludes that a title by title rights clearance can be prohibitively costly and complex for many institutions. The enhanced capacity of digitization and Internet distribution to unlock the humanities’ riches has been urging a solution to the orphan works problem and a more efficient rights clearing process. The relevant social value of digitization of our cultural heritage in terms of openness and accessibility may be potentially vanished by copyright strictures. So far, groundbreaking technological advancement, which could open our society up to unprecedented cultural exposure, is hindered by an outmoded legal framework.
The European institutions are aware of the potential loss of social and economic value if the orphan works problem remains unsolved. As the Commission noted, “there is a risk that a significant portion of orphan works cannot be incorporated into mass-scale digitisation and heritage preservation efforts such as Europeana or similar projects.” Digitization of the European cultural heritage and digital libraries are key aspects of the i2010 strategy and the recently implemented Digital Agenda of the European Union. Therefore, the necessity to resolve once for all the hindrance that orphan works represent for digitization projects is now on top of the European agenda. To deal with the economic, legal and technological issues raised by the i2010 strategy, the EU Commission published a Recommendation and set up a High Level Expert Group on the European Digital Libraries Initiative (“HLEG”). The Recommendation and the HLEG tackled the key challenges of digital preservation, web harvesting, orphan works and out of print works. The Copyright Subgroup of the HLEG unanimously concluded that a solution to the issue of orphan works is desirable, at least for literary and audiovisual works.
A solution for the orphan works problem should be investigated across few different co-ordinates: harmonization and mutual recognition of the status of orphan works at the national, regional and international level, registries or networks of information to facilitate the identification of rightholders, and the implementation of other tools including mandatory exceptions, extended collective licences or guarantee funds.
Harmonization and mutual recognition are the first goal to be achieved. Séverine Dusollier argues in a similar fashion in the Scoping Study on Copyright and Related Rights and The Public Domain prepared for the Word Intellectual Property Organization:
[th]e issue of orphan works should be dealt with at the international level or at least, a mutual recognition of the status of the orphan work applied in one country should be recognized by other Parties to the Berne Convention (except when identification or location of the author can be solved in this other country). WIPO should also help to set up networks of information about works in order to facilitate the identification of authors of orphan works. This would clarify the protected or unprotected status of orphan works.
A very similar position is shared by the HLEG as summed up by Professor Marco Ricolfi, chairman of the High Level Expert Group on the European Digital Libraries initiative and COMMUNIA member, at the 1st COMMUNIA Conference. Speaking of the Report delivered by the HLEG, Professor Ricolfi noted that
[f]irst, it was assumed that a minimum of harmonisation is required between the rules concerning clearance of orphan works applicable in the 27 different Member States. This harmonisation should particularly concern the issue of establishing what are the relevant diligent search criteria for each sector. Second, it was noted that under EU law minimum harmonisation usually leads to mutual recognition. Indeed, once the basic rules to determine what is due diligence in the search of rightholders of orphan works are established, what is deemed acceptable in one Member State should be held to be correspondingly acceptable in all the other Member States, or, in other words, should have cross-border effect. [ . . . ] Third, the consequences of compliance with due diligence guidelines should be established at Member States’ level. The mechanisms may again vary from one Member State to the other. One Member State may consider resorting to extended collective licenses (ECL). [ . . . ] Of course, other Member States might adopt different mechanisms [ . . . ] In either case, what is important is that an orphan work which gets the green light under any of these mechanisms in any Member State should also be considered cleared in all the other 26 Member States. [ . . . ] EU law does indeed come into the picture; but only to the extent it resorts to the time honoured “minimum harmonisation-mutual recognition” principle to give EU-wide interoperability to solutions in all other respects based only on a combination of contractual arrangements and Member States legislation.
A solution to the orphan works problem encompasses also new modes of collecting data to facilitate the identification of rightholders. Many projects aim at (i) increasing supply of rights management information to the public, (ii) developing converging and unique sources of information, (iii) establishing specific databases for orphan works. The project ARROW (Accessible Registries of Rights Information and Orphan Works), http://www.arrow-net.eu, is a notable European example. The project includes national libraries, publishers, writers’ organisations and collective management organisations and aspires at finding ways to identify rightholders and rights, clear the status of a work, or possibly acknowledge the public domain status of a work in Europe. ARROW aims in particular to support the European Community i2010 Digital Library Project and Europeana. The project is expected to scale up in order to cover all the print material, textual and non-textual, and afterwards also photographic and audiovisual works.
Proposals to create either an European register of works or a network of registries will help minimizing the orphan works problem as well. The implementation of some sort of copyright registry is endorsed by COMMUNIA policy Recommendation # 8.
The implementation of a system of diligent search is advocated by institutional proposal both in Europe and the United States. In particular, the HLEG has made the following recommendation to tackle the orphan works problem:
Member States are encouraged to establish a mechanism to enable the use of such works for non-commercial and commercial purposes, against agreed terms and remuneration, when applicable, if diligent search in the country of origin prior to the use of the works has been performed in trying to identify the work and/or locate the rightholders.
The mechanisms in the Member States need to fulfil prescribed criteria: (i) the solution should be applicable to all kinds of works; (ii) a bona fide/good faith user needs to conduct a diligent search prior to the use of the work in the country of origin; (iii) best practices or guidelines specific to particular categories of works can be devised by stakeholders in different fields. The system should be based on a reciprocity so that Member States will recognise solutions in other Member States that fulfil the prescribed criteria. As a result, material that can be lawfully used in one Member State would also be lawfully used in another.
The HLEG has also godfathered a Memorandum of Understanding on Orphan Works, a form of self-regulation subscribed by 27 stakeholders’ organisations representing European right holders and cultural institutions. They agreed to observe a set of diligence guidelines when searching for rightholders, and that a work can only be considered orphan if the relevant criteria, including the documentation of the process, have been followed without finding the rightholders.
However, the solution proposed by the Commission is tailor-made for achieving the cross-border effect needed in the Digital Libraries’ Initiative. Most likely, the measure would be a far less efficient solution if applied to the orphan works problem at large, especially the individual re-use of orphan works. To that end other solutions should be investigated and evaluated. In any event, as indicated by the HLEG, the mechanism to enable the use of orphan works for commercial and non-commercial purposes should be established at the Member States’ level. The chosen mechanism may vary from one Member State to the other but clearance in one Member State will extend to all the Members of the European Union. To that end, EU law should step in only to set up a principle of mutual recognition and minimum harmonization to national solutions.
As a possible solution, COMMUNIA would firstly look into extended collective licensing and mandatory exceptions, both tied to a guarantee fund.
Extended collective licenses are applied in various sectors in Denmark, Finland, Norway, Sweden and Iceland with the following basic characteristics.
(1) The system combines the voluntary transfer of rights from rightholders to a collective society with the legal extension of the collective agreement to third parties who are not members of the collective society. However, to be extended to third parties of the same category, the collective society must represent a substantial number of rightholders.
(2) In any event, the legislation in Nordic countries provides the rightholders with the option of claiming individual remuneration or opting out from the system.
(3) Therefore, with the exceptions of the rightholders who opted out, the extended collective licence automatically applies to (i) all domestic and foreign rights owners, (ii) deceased rights holders, in particular where estates have yet to be arranged, and (iii) unknown or untraceable rights holders.
(4) A user may obtain a licence to use all the works included in a certain category with the only exception of the opted out works. Re-users of existing works will achieve the legal certainty that all the orphan works will be covered by the licence, also in consideration of the fact that opted out works instantly cease to be orphan.
The introduction of a mandatory exception for orphan works is an alternative solution for the orphan works problem. The most comprehensive proposal for an exception to copyright to permit the use of an orphan works has been outlined in a paper for the Gowers Review by the British Screen Advisory Committee (BSAC).  This proposal would set up a compensatory liability regime.
(1) Preliminary, to the end of triggering the exception: (i) a person is requested to have made ‘best endeavours’ to trace the copyright owner of a work; supposedly ‘best endeavours’ will be judged against the particular circumstances of each case; (ii) the work has to be marked as used under the exception to alert any potential rights owners.
(3) However, users should be allowed to continue using the work that has been integrated or transformed into a derivative work, provided payment of the reasonable royalty and sufficient attribution.
It is worth noting that Article 5 of the EU Copyright Directive, which has harmonized limitations and exceptions in all Member States of the EU, should be amended to allow this type of exception.
Finally, a guarantee fund may be combined with the above mentioned solutions.
Relevant Actions to be taken by:
- European Commission (EC)
- Propose a directive for access to orphan works that will set up a principle of mutual recognition and minimum harmonization to national solutions to orphan works
- European Parliament (EP)
- Enact a directive for access to orphan works that will set up a principle of mutual recognition and minimum harmonization to national solutions to orphan works
- Member States (MS)
- Enact legislation to make extended collective licences enforceable erga omnes.
 See European Commission Staff Working Paper on Certain Legal Aspects Relating to Cinematographic and Other Audiovisual Works, SEC (2001) 619 (11 April 2001), available at http://ec.europa.eu/avpolicy/docs/reg/cinema/cine doc_en.pdf; European Commission Staff Working Document, Annex to the Communication from the Commission ‘i2010: Digital Libraries’, Questions for Online Consultation, SEC (2005) 1195 (September 30, 2005), available at http://ec.europa.eu/information_society/activities/digital_libraries/doc/communication/annex2_en.pdf.
 See Anna Vuopala, Assessment of the Orphan Works Issue and Cost for Rights Clearance 4 (May 2010) (report prepared for the European Commission, DG Information Society and Media, Unit E4, Access to Information) [hereinafter Vuopala, Orphan Works and Rights Clearance]
 See Naomi Korn, In from the Cold: An Assessment of the Scope of ‘Orphan Works’ and its Impact on the Delivery of Services to the Public (June 9, 2009) (report prepared for Strategic Content Alliance and Collections Trust), available at http://www.jisc.ac.uk/media/documents/publications/infromthecoldv1.pdf
 See Andrew Gowers, Gowers Review of Intellectual Property (HM Treasury, November 2006), available at http://webarchive.nationalarchives.gov.uk/+/http://www.hm-treasury.gov.uk/gowers_review_index.htm;
 Commission Communication on Copyright In The Knowledge Economy, at 5-6, COM (2009) 532 final (October 19, 2009), available at http://ec.europa.eu/internal_market/copyright/docs/copyright-infso/20091019_532_en.pdf.
 See Commission Recommendation 2006/585/EC on the Digitisation and Online Accessibility of Cultural Material and Digital Preservation, 2006 O.J. (L 237)28 (August 31, 2006).
 See i2010 European Digital Libraries Initiative, High level Expert Group, Copyright Subgroup, Report on Digital Preservation, Orphan works and Out-of-Print Works. Selected Implementation Issues (April 18, 2008), at 5, available at http://ec.europa.eu/information_society/newsroom/cf/itemlongdetail.cfm?item_id=3366.
 Séverine Dusollier, Scoping Study On Copyright And Related Rights And The Public Domain 69 (prepared for the Word Intellectual Property Organization) (April 30, 2010)
 Marco Ricolfi, Copyright Policies for Digital Libraries in the Context of the i2010 Strategy, paper presented at the 1st COMMUNIA Conference, Louvain-la-Neuve (July 1, 2008), at 5-6; see also Marco Ricolfi, Digital Libraries in the Current Legal and Educational Environment: A European Perspective, in Global Copyright. Three Hundred Years since the Statute of Anne, from 1709 to Cyberspace (Lionel Bently, Uma Suthersanen and Paul Torremans eds., Edward Elgar 2010)
 See Neelie Kroes, European Commission Vice-President for the Digital Agenda Addressing the orphan works challenge, speech delivered at the IFRRO (The International Federation of Reproduction Rights Organisations) launch of ARROW+ (Accessible Registries of Rights Information and Orphan Works towards Europeana), Brussels, Belgium, SPEECH/11/163 (March 10, 2011), available at http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/ 11/163&format=HTML&aged=0&language=EN&guiLanguage=en.
 i2010 European Digital Libraries Initiative, High Level Expert Group on Digital Libraries, Final Report, Digital Libraries: Recommendations and Challenges for the Future (December, 2009), available at http://ec.europa.eu/info rmation_society/activities/digital_libraries/doc/hleg/reports/hlg_final_report09.pdf.
 British Screen Advisory Council, Copyright and Orphan Works (August 31, 2006) (paper prepared for the Gowers Review).