[A2k] Feedback - Conference on orphan works, Brussels

Jeremy de Beer jeremy.debeer at gmail.com
Fri Nov 19 14:10:28 PST 2010

As a timely coincidence, a legal and empirical analysis of Canada's response to the orphan works problem was publicly released today. http://cb-cda.gc.ca/about-apropos/2010-11-19-newstudy.pdf

Jeremy de Beer

Associate Professor | Professeur agrégé
Faculty of Law | Faculté de droit
University of Ottawa | Université d'Ottawa
57 Louis Pasteur Street, Ottawa, ON, CAN, K1N 6N5

T. 613.562.5800 x.3169 | M. 613.263.9155 | F. 613.562.5124

jeremy.debeer at uottawa.ca | http://www.jeremydebeer.ca/

On 2010-11-19, at 10:24 AM, Anne-Catherine Lorrain wrote:

> 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
> (Poland/Brussels).
> 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,
> Poland/Brussels).
> *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
> (http://www.europeana.eu<http://www.europeana.eu/portal/>
> );
> - 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 (
> http://ec.europa.eu/internal_market/copyright/docs/copyright-infso/greenpaper_en.pdf
> );
> - 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
> access:
> http://beck-online.beck.de/default.aspx?typ=reference&y=300&z=GRURINT&b=2010&s=677&n=1
> ).
> 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
> material
> 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
> public
> policy and with the interests of right-holders. And all sorts of other
> possible
> initiatives, public and private, will also be frustrated"
> (http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/10/619).
> 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
> public
> 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
> qualify
> 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
> public
> interest.
> 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
> rightholders;
> - Prior registration of works: there is no mandatory registration for
> copyrighted
> 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.
> So
> voluntary - but still highly advised - registration in databases could be a
> good
> solution.
> A statutory exception - after "reasonable/diligent search" - could be a
> solution,
> although the panelists doubted about its feasability in the EU. Instead, a
> solution
> 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
> search
> 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
> contradiction
> with the "three-step-test" requirements. For instance in Canada and in
> Switzerland,
> the solutions adopted nationally are recognized as not harmning the
> copyright holders'
> interests.
> Any European level solution would not require to review the 2001 Copyright
> Directive,
> 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.
> National
> 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
> the
> 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
> be
> provided by public money, and the system would only work for public
> institutions,
> 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).
> [END]
> -- 
> Anne-Catherine Lorrain
> aclorrain at gmail.com
> Mob.: +32 473 99 97 92
> www.aclorrain.fr
> ---------- 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
> the
> 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
> restitution.
> 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
> side.
> 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
> www.aclorrain.fr
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