[A2k] Feedback - Conference on orphan works, Brussels

Anne-Catherine Lorrain aclorrain at gmail.com
Fri Nov 19 08:24:12 PST 2010

Here is a short report on the public conference on orphan works that was
held at the European Parliament in Brussels earlier this week (on November
16th, 2010).

I hope that which follows will help, especially our American colleagues who
have been working on the issue of orphan works for a few years after the US
Congress put several legislation proposals on the table.


The event was organized by the Polish law firm Wardynski & Partners
Opening by MEP Róza Maria Grafin von Thun und Hohenstein
Panel discussion: Prof. Ewa Nowinska (Wardynski & Partners,
Poland/Brussels), Dr. Sybilla Stanislawska-Kloc (Jagiellonian University in
Krakow, Poland), Prof. Alexander Peukert (Goethe University Frankfurt,
Germany), Dr. Damian Flisak (Wardynski & Partners, Poland/Brussels).
Conference closing by Tomasz Wardynski (Wardynski & Partners,

*NOTICE: this is a non-official report which may not reflect accurately
the interventions of the speakers.*

[Orphan works are copyrighted works whose rightholders cannot be identified
or located]

*Orphan works: where do we stand in Europe*
- Europeana, launched by the European Commission in 2008, is the online
portal of libraries, museums and archives in Europe
- The High Level Expert Group (HLEG) - Copyright Subgroup on European
Digital Libraries established by the European Commission in relation to the
i2010 Digital Libraries initiative adopted a Final Report in June 2008;
- ARROW, Accessible Registries of Rights Information and Orphan Works
towards Europeana, is a project of a consortium of European national
libraries, publishers and collective management organisations, also
representing writers through their main European associations and national
organisations. ARROW aims in particular to support the EC’s i2010 Digital
Library Project;
- The issue of orphan works has been addressed by the European Commission in
its 2008 Green Paper on Copyright in the Knowledge Economy;
- Since then, a public hearing took place in 2009 (
- Whereas no public consultation on orphan works has been conducted by the
European Commission, a paper is allegedly due to be released by DG Markt in
the forthcoming days. Whether a consultation will follow does not seem sure.
The announced Commission paper is notably based upon Tilman Lüder's paper
that was recently published in a German Law Journal ("The „orphan works”
challenge", GRUR Int. 2010; electronic version available under restricted

Europe has been taking the challenge of digitizing its cultural heritage
with the Europeana Project. European Commission Vice-President for the
Digital Agenda Nelly
Kroes recently critized the 'fragmented' and 'ill-adapted' European
copyright system,
that could leave Europeana to "a niche player rather than a world leader if
it cannot
be granted licenses and share the full catalogue of written and audio-visual
held in our cultural institutions. And it will be frustrated in that
ambition if it
cannot team up with commercial partners on terms that are consistent with
policy and with the interests of right-holders. And all sorts of other
initiatives, public and private, will also be frustrated"

The European Commission set up a 'Comité des Sages' to help find solutions
to some of these issues for the digitization of cultural content. Their
conclusions are awaited
in 2011.


Poland is preparing a policy and working agenda as one of the next holders
of the EU
rotating presidency (after Hungary) from 1st July 2011 (for six months).
Copyright and
the issue of orphan works are on the list. This conference being the first
event dedicated to the issue of orphan works in Brussels, it shows that the
matter is
taken seriously by one of the most important countries in Eastern Europe.

Due to lack of figures and objective studies, it is difficult to assess, to
and quantify the orphan works problem. Neverthelss, everyone agrees that a
'mess' does exist, which calls for a legal clarification. Public
institutions such as libraries
and research centers highly need legal certainty, also for the sake of the

The panelists insisted on the fact that no solution to the issue of orphan
works could
be certified as "the good solution". European Member States are
experimenting solutions at national  level, but no solution has emerged at
the EU level so far.

Possible solutions:
- Creation of databases of copyright protected works;
- Setting up criteria to define "reasonable diligence" in the search for
- Prior registration of works: there is no mandatory registration for
works in Europe, and it has never been a condition for copyright protection
in history
(conversely to the US). The establishment of a mandatory registration, which
would require a revision of the Berne Convention, would not be a realistic
scenario in the EU.

For future works, different solutions are needed, which can be compatible
with the
prohibition of formalities, but still facilitating access to orphan works.
voluntary - but still highly advised - registration in databases could be a

A statutory exception - after "reasonable/diligent search" - could be a
although the panelists doubted about its feasability in the EU. Instead, a
based upon the system to which Member States are already used to (i.e., for
most of EU countries, collective managament) would seem more realistic.
However, for instance, the Nordic system of extended collective licensing
appears legitimate at national level, but fails to deliver Eu wide access.
The extension effect, if met nationally,
does not cover the licensing of orphan works across borders.

A compromise solution could be mutual recognition in Member States (e.g. a
could be considered as sufficient in Germany but not in France...). This
latter compromise solution is cited in Lüder's paper (and maybe in the
upcoming Commission paper) as 'option 6': "mutual recognition of orphan
works made available by libraries' (under the condition of
 "reasonable/diligent search").

The implementation of a solution to orphan works does not seem to risk
with the "three-step-test" requirements. For instance in Canada and in
the solutions adopted nationally are recognized as not harmning the
copyright holders'

Any European level solution would not require to review the 2001 Copyright
or at least not in details. The implementation of more detailed solutions
should be
left to national jurisdictions and to the European Court of Justice.
authorities should grant licenses on a case by case basis.

Lüder's paper seems to be inspired by the Google Book Settlement, calling to
set up European regulation to unable EU libraries to compete with Google,
namely in achieving the Europeana project.

One must bear in mind the significant positive economic impact that a
solution to the
orphan works problem could bring: encouraging small businesses to step into
publication market, and more broadly fostering innovation in the European
single market...

Is it a good idea to have a Google-like system in the EU? First of all, the
US Google
solution is not transposable in the EU, due to differences of legal
concepts. In the
EU, a comparable system would be controlled by the States, the funding would
provided by public money, and the system would only work for public
excluding commercial activities.

About the costs of a solution system to orphan works, and about the
remuneration system to the benefit of rightholders, everyone agrees that it
will cost a lot, not only in terms of money, but also in terms of social
efforts to agree on such a big issue which challenges the copyright system.

As to the incidence of the ACTA provisions on access to orphan works through
potential high damages for illegal use of copyrighted content - going beyond
the flexibilities provided for in the TRIPS Agreement (on this issue, see
James Love:
http://keionline.org/node/980), the lawyers present on the panel said that
ACTA would
probably not bring any significant changes in practice (mainly because
copyright infringement sanctions are already high in Europe, especially in
Poland and Germany).


Anne-Catherine Lorrain
aclorrain at gmail.com
Mob.: +32 473 99 97 92

---------- Forwarded message ----------
From: Anne-Catherine Lorrain <aclorrain at gmail.com>
Date: 2010/10/26
Subject: Conference on orphan works - Brussels, 16th November 2010
To: a2k at lists.keionline.org

MEPs Róża Maria Grafin von Thun und Hohenstein, and Tadeusz Zwiefka, in
collaboration with the law firm Wardynski & Partners, will be hosting a
public event:
"Orphan works; an example of the unsolvable conflict between the author and
society", under the patronage of Doris Pack, MEP, Chairman of the CULT
Committee, and Klaus-Heiner Lehne, MEP, Chairman of the JURI Committee.
Orphan works are works the copyright ownership of which cannot be
established. Estimates show that they constitute a significant part of the
cultural heritage. Due to lack of the possibility of obtaining consent for
their use, as the absence of another solution exists, they lie idle and wait
to be used. The subject of the discussion shall be legally available methods
of restitution to the society of orphan works, while preserving the
interests of persons who are entitled to remuneration as a result of such
Tuesday, 16th November 2010, 1:00 p.m. – 3:00 p.m.
followed by a cocktail, 3:00 p.m. – 4:30 p.m.
European Parliament
60 rue Wiertz/Wiertzstraat, Brussels, Belgium
ROOM JAN 6Q2 – entrance through Spinelli building from the Luxembourg Square
Free participation but limited amount of seats.
RSVP by 3rd November 2010 to: Aleksandra Oleśniak,
aleksandra.olesniak at wardynski.com.pl
See attached document for more details on the event.

Anne-Catherine Lorrain
aclorrain at gmail.com

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