How do you solve a problem like Orphan Works?

Yesterday evening, a milestone in the ongoing discussions about copyright and (more importantly) orphan works was reached. A Memorandum of Understanding (PDF) to approve the digitisation and making available of out-of-print books and journals was signed by representatives of European rights holder societies, creators, authors and libraries. It has taken nearly a year, but all stakeholders in the process were finally able to agree on three main principles whichwould allow cultural organisations to make a greater portion of their collections available online:

1. Agreements must be negotiated on a voluntary basis by all relevant parties to determine what is to be digitised and to ensure that the items in question are no longer in "commerce" (works which were once published and which neither publisher nor author intends to re-print and sell again). Moral rights are key to this process and authorship(where known) must be acknowledged;


2. Collective licences may be granted by collection management organisations where a substantial number of authors and publishers are represented. Digital library projects must be widely publicised and rights holders given the option to opt out of any collective licensing scheme;


3. Collection management organisations may limit licences to those of represented rights owners only (rather than on behalf of all rights owners) if agreements include trans-border and/or commercial uses of works.

However, whilst an agreement of this kind is clearly satisfactory to rights holders, it remains to be seen whether libraries and other cultural institutions will truly benefit. The optimism of Olav Stokkmo (CEO of the International Federation of Reproduction Rights Organisations) that this MoU will solve the problem of orphan works is misplaced; large numbers of orphan works that reside in libraries and archives were never 'in commerce' (they are often unpublished, such as letters, diaries and manuscripts) and as such one wonders whether the scope of the MoU would extend to them. In addition, the issue of orphan works covers all types of work; the MoU deals only with text-based works where rights clearances are easier because there is traditionally one author and one publisher, whereas for audiovisual works there are often many independent rights holders to trace.

EU Member States are not required to implement the terms of the MoU,as it has little or no legislative weight. There remains an expectation that legislation from the EU on orphan works is imminent,with the issue currently being discussed at length in the UK as aresult of the Hargreaves' Review of Intellectual Property.

Photo: 'More old books...' by guldfisken (Flickr), reproduced under CC-BY-2.0