[A2k] SCCR/32 EIFL statement on orphan works

Teresa Hackett teresa.hackett at eifl.net
Thu May 12 13:49:05 PDT 2016


32nd Session: Geneva, 9 May – 13 May 2016
Agenda item 6: Limitations and exceptions for libraries and archives

Topic 7 Orphan Works, Retracted and Withdrawn Works

I am speaking on behalf of Electronic Information for Libraries (EIFL) on
Topic 7 Orphan Works, Retracted and Withdrawn Works.

On orphan works, some countries are legislating in an attempt to solve the

In others, such as the US, libraries use ‘fair use’ to engage in the mass
digitization of their special collections of archival material,
photographs, and ephemera such as pamphlets and posters. For example, New
York Public Library has digitized its collection of materials relating to
the New York World's Fair of 1939 and 1940. These materials are now
available online, and form the basis of an educational curriculum.

In contrast to the millions of likely orphan works made available by U.S.
libraries under fair use, in Europe only 1,729 works have become available
so far under the Orphan Works Directive that came into force in October

This is because the requirements, in particular, the diligent search
mechanism is too onerous to lead to real results.

We hope that the shortcomings will be addressed in the Commission’s review
of copyright rules in order to realize the aim of the Directive to
“facilitate large-scale digitization of Europe’s cultural and educational

We believe that libraries outside of the US and EU should also have the
opportunity to digitize orphan works. We appreciate the consolidated
proposed text addressing orphan works and withdrawn works in document

Paragraph 1 in Topic 7 provides for an exception to the rights of
reproduction, adaptation and communication to the public for works for
which the author or rightsholder cannot be identified or found after
reasonable inquiry.

I notice that the word ‘copyright’ seems to be missing from the text. It
should read “Libraries and archives shall be permitted to reproduce, make
available to the public and otherwise use any work, or material protected
by COPYRIGHT AND related rights”.

The next paragraph provides that if the rightsholder subsequently shows up,
they may claim equitable remuneration for future uses, or can require
termination of the use.

The provision leaves it to member states to determine whether commercial
uses would require payment of a fee.

Mr. Chairman, the orphan works problem is huge. It affects every country in
the world. The current situation is in no-ones interest.

Keeping orphan works locked up harms creativity and innovation: the very
things that copyright is supposed to encourage.

Making orphan works available supports education, creative industries and
economic activity based on digitized cultural resources.

SCCR is the appropriate body to address the orphan works problem and in
doing so, would do a great service to copyright and the copyright system.

Thank you for your attention.

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