Orphan Works

manuscript digitisation

Works whose right holders cannot be contacted pose serious obstacles when setting up digital libraries. talked to Dr Arne Upmeier, a librarian at Illmenau University Library and former chairman of the legal commission of the German Library Association.

Dr Upmeier, what are in fact orphan works?

Our libraries and archives contain thousands of works which are copyrighted but whose right holders can no longer be contacted. They are “orphaned” in the sense that there is nobody who actively holds the rights. This poses a huge problem.

Valuable treasures at risk of being forgotten

What is the scale of this problem?

We estimate that we do not know how to contact the holders of the rights to more than half of the books published in the last century. One example might be a doctoral thesis from the nineteen seventies. At what address could the author stated on the title page be found today? Is he or she indeed still alive, or have the rights perhaps already passed to his or her heirs?

In such situations considerable detective work would be necessary, though in practice this is unfortunately not feasible – especially when one is dealing with large quantities of books.

Why do orphan works pose a problem when setting up a library such as the European digital library Europeana?

As a rule, we are only allowed to digitize a work and make it available to a wider public if we have the consent of the right holder. Although we can be pretty sure that most authors would be pleased if their virtually forgotten works were presented to the public anew, this does not constitute sufficient and legally binding digitization permission.

For quite some time now we have observed that texts that are not available on the Internet are paid increasingly little attention. It is a great shame that valuable treasures are at risk of being forgotten merely because their right holders can no longer be asked!

The call for a pragmatic balance of interests

How could legal certainty be established?

We need a good law to restore the currently distorted balance between the assumed interests of the right holders and those of the general public. It is very much in the public’s interest to have free access to the cultural and academic achievements of the past century.

Normally, the authors of works should be the ones who decide on how “their” work is used. If the authors are no longer able to decide, however, this indeed represents a problem and lawmakers need to find a pragmatic balance.

On what level should this happen?

There need to be regulations on various levels. At the European level, the most important thing is that national regulations also be recognized beyond Europe’s internal borders.

That said, copyright law is largely Europe-centred. National legislators thus need a kind of European permission in order to be able to issue their own regulations in the first place. How exactly orphan works should be dealt with in Germany, however, must be determined by national lawmakers.

Criticism of proposed EU directive

In May 2011, the European Union proposed a directive on this subject. Does that constitute progress?

Yes and no. It is indeed a major step forward that the EU has decided to address this important issue. Unfortunately, the devil is in the detail here too, and some of the proposals submitted would in fact be rather counterproductive.

What exactly would the directive regulate?

At the heart of the European proposal is the “due diligent search” for the author which a library or archive must undertake before a work can be digitized. It is important that libraries should also be able to conduct this search automatically, that is to say by querying specific databases. If the search proves fruitless, the library or archive should be allowed to go ahead with digitizing the work in question.

The German Library Association has criticized the consultations over the draft EU directive. In an open letter to the members of the European Parliament, it warned of the risk of losing sight of the directive’s goal of providing a practical solution to a practical problem.

In what sense?

The main problem concerns the very high requirements that are currently being applied to the “due diligent search”. The obstacles built into the draft directive are so high that mass digitization would be made extremely difficult. It would be far too expensive, however, and indeed quite disproportionate, if extensive research had to be conducted before each digitization process.

Proposed compromise for Germany

What will happen next with this proposal?

We assume that the new EU directive will come into force sooner or later. When this happens, it is very important that national lawmakers respond as quickly as possible and transpose the directive into national law. Libraries have already been waiting on the starting blocks for some time now.

Are national efforts already underway to put in place a legal regulation?

The German Publishers and Booksellers Association, the collecting society VG Wort, the German National Library and the German Library Association have agreed on a joint proposal for how to deal with “orphan” works and have presented this to the Federal Ministry of Justice. Until it has been finally clarified exactly what form the European regulation will take, however, it will also remain unclear whether the proposed compromise can be put into practice in Germany.

Editor’s note:
The German government has presented a bill to the use of orphan works in April 2013. The interview was conducted before that date.