The digitalizing of Literary and Musical Works

I.
Digitalizing literary and musical works do not raise specific issues concerning copyrights. Digitalizing such works and making them available on the internet require rights of reproduction or rights to make available to the public.
Due to the harmonisation of copyright law in the EU by the Information Society Directive there are scarcely any differences between member states as far as the protection of digitalized works as such is concerned.
However, the situation differs quite a lot with regard to limitations or mandatory licences of digitalized works. As the InfoSoc-Directive only provides for a certain set of limitations which, however, is not mandatory rather than optional for member states, the situation in Europe resembles a rag rug. Limitations in one member state are not necessarily matched by limitations in other member states.
Moreover, member states do not treat unanimously ephemere and/or temporarily copies; some jurisdictions still regard even access providing as requiring copies and hence copyright licences.
Finally, liability issues are more and more at the centre of debates as providers are compelled to undertake filtering and controlling activities despite the prohibition of active monitoring obligations by the E-Commerce-Directive. “Voluntary” agreement such as the Olivennes-Report in France are significant for the ongoing discussion.
The reinforcement of liability and enforcement of copyright infringements, however, may also endanger activities for sharing content and enabling free access to content. As portals, libraries etc. could face liability claims in case of sharing protected content the management of copyrights of the content shared and hosted becomes crucial.
File-Sharing as one of the most popular methods to share copyrighted content is mostly qualified as a copyright infringement, be it the upload or the download because the privilege of private use (fair use) is trespassed.
II. Open Access and the InfoSoc-Directive
From a perspective of sharing and freely accessing content European law does not offer many chances for member states to limit copyrights for public purposes. Art. 6 para 4 subpara 4 of the InfoSoc-Directive blocks most of attempts to enable free access online to copyrighted content. Moreover, Art. 5 para 2, 3 of the InfoSoc-Directive provides only for a limited scope of mandatory limitations on copyright.
However, the exact scope of the InfoSoc-Directive still is opaque as compulsory licences are obviously not covered by the Directive. Such models of using compulsory licences have been discussed in Germany recently. Nevertheless, international conventions like the Berne Convention restrict largely the use of such licences.
On the other side, European law does not hinder contractual approaches to enable sharing of content and free access to works, such as open source, open access, or creative commons licenses.
III. Retrodigitalisation (“orphan works”)
One crucial issue for sharing content and enabling free access to content concerns the retrodigitalisation of already published works:
In theory, authors of published works might be asked to license their works for electronic use to libraries or other repositories. However, most of the authors are hard to reach as their addresses or even more their heirs are unknown. The InfoSoc-Directive does not deal directly with this issue as no specific limitations are offered to open archives to the public use (or even more for electronic use). However, the limited range of allowed limitations hamper the introduction of specific “orphan works” limitations in member states in order to retrodigitalize those works and open archives for public use.
Hence, according to the current legal situation only contractual solutions or fictions of license transferences are possible:
Germany opted for a fiction that provides that all unknown publishing rights are transferred within a year to the publisher if the author does not object to it. However, there is neither any obligation for the publisher to (retro-) digitalize the work nor to make it accessible to the public. Moreover, there are serious doubts if such a fiction passes the 3-step-test as the author will loose all rights to the publisher (however, combined with a compensation for the author).
Other member states make use of a collective licensing model such as the Scandinavian states. However, collective licenses can not differ between such works whose author can be found and asked to transfer the rights and real orphan works where no author could be found. Thus, it is arguable whether such solutions are legitimate from the perspective of the constitutional protection of authors (property rights).

This work is licensed under a Creative Commons Attribution 3.0 Unported License.