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CEPIC Statement on Orphan Works directive proposal
CEPIC 2011, Istanbul, Turkey. Day 3, Friday, May 20th, 2011. (CTK Photo/Petr Mlch)
BySylvie FodorThe EC proposal was rushed for publication together with other IPR documents. From a rightsholder perspective, it is in regress to the draft versions.
Stand- alone photography is excluded from the scope of the directive. But since most pictures make money because they are published somewhere and part of another work, this exclusion does not make away with the issue of photographic rights altogether. It does mean that the future directive would not apply to historical picture archives.
The most controversial provision of the proposal is the Article 7, which, if the Directive passes, will de-facto allow for commercial usages of orphan works by public libraries. Not only would these public bodies be allowed to digitize orphan works in the pursuance of their public mission, but Article 7 allows under certain conditions all other usages too, i.e. commercial uses.
Since they are excluded from the scope of the Directive, historical picture archives, who hold a certain number of orphans in their files, would not benefit from this provision!
The CEPIC Statement outlines the contribution of picture agencies to the preservation of our visual cultural heritage. The statement offers alternatives. Indeed, as part of the ARROW PLUS project, CEPIC is working towards such alternatives allowing for an effective “Diligent Search”. Namely, a "Diligent Search" which is not a mere formality but finds the author and allows for direct payment.
To sum up:
- The directive should concentrate on its original goal which is mass digitization of public libraries assets. We are not in favour of commercial usage by public institutions at special conditions.
- There should be no discrimination between works/ authors. Visual authors should get the same level of protection as other authors.
- Diligent search should not be a mere formality to allow quick digitization. It should be a search that leads to an author who gets direct payment.
It has taken that long to get where we are. However, this is only the beginning on a long road. More lobbying is necessary at the Council and at the European Parliament.
File Attachment
| Attachment | Size |
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| CEPIC_Comments_Oprhan_Works_Directive_August_2011.pdf | 136.99 KB |
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Orphan works
Current EU and UK proposals offer no protection to bona-fide rights holders of pre-digital (as in original negatives) archives, particularly where such archives legitimately hold former commercial negative stocks from organizations which no longer exist.
Current OW proposals need to address the fact that whilst many such archives have already embarked on a program of digitization the process is both expensive and time consuming. Considerable investments have already made by legitimate rights holders to conserve the original images through the establishment of environmentally controlled archival facilities but the risk that OW proposals present to such investments must be recognized if they are not to be destroyed in a head-long rush to digitize prints.
Many first and subsequent generation prints to which no copyright is attached are to be found in legacy collections held by private and public organizations. These could be offered up as orphan works under current proposals to the detriment of legitimate rights holders.
It is essential, therefore, that serious consideration be given to assisting legitimate rights holders to digitize their holdings, possibly through the establishment of financial grants and in conjunction with educational establishments.