Report: Only the free accessibility of hierarchized sources will make Diligent Search workable

The orphan work exception has the purpose of facilitating the circulation of works whose authors are not known or cannot be located, to the benefit of cultural institutions, and society at large. Because the different approaches embraced by the European Member States to the recognition of the orphan work status were recognized a major obstacle, the Directive on Orphan Works of 2012 was issued with the idea of harmonising this exception to copyright law across the EU.

The study conducted by EnDOW researchers in 20 European countries (Austria, Belgium, Cyprus, Czech Republic, Estonia, France, Germany, Greece, Ireland, Italy, Lithuania, Luxembourg, the Netherlands, Poland, Portugal, Romania, Slovakia, Spain, Sweden, and the United Kingdom) shows that all the examined countries have implemented the Directive nearly literally as to the beneficiary institutions, the categories of works and kinds of activities to which the exception applies.

At the same time, while the Directive mandates a Diligent Search of right-holders before any work can qualify as an orphan work, it gives to the Member States the choice about what sources should be consulted in order to meet the requirement of a Diligent Search. According to the study, all countries under scrutiny have issued or are in the process of issuing lists of sources to be consulted. However, several discrepancies emerge in regard to the appropriate sources to carry out the Diligent Search, and the ways to document it. Most of all, the absence of hierarchical validity of the appropriate sources for Diligent Search leave the clearing of rights uncertain.

In addition, the study warns that Diligent Search not only depends on the number of sources that need to be consulted, but also on their accessibility. In particular, the number of national sources shown by the study spans from a minimum of 10 (Cyprus) to a maximum of 357 (Italy), with a total of 1,768 sources for the 20 countries. As already revealed by the Report on “Requirements for Diligent Search in the United Kingdom, the Netherlands, and Italy”, this study confirms and provides further evidence that a significant share of the sources to be consulted in order to carry out a Diligent Search is not freely accessible online. Specifically, the analysis of the sources in 20 countries reveals that the ratio of freely online accessible sources varies significantly among Member States, ranging from the 91% of Lithuania to the 36% of Poland, with an average accessibility of 63%. Moreover, some of the sources identified as “appropriate” to carry out a Diligent Search can only be consulted offline (namely on-site), and this may make the Diligent Search more resource-intensive or simply unworkable.

In conclusion, according to the study, it is advisable that each Member State would provide for a detailed non-exhaustive list of sources and the definition of internal hierarchies among the listed sources, with a diversification between compulsory and optional sources, depending on their relevance and accessibility. Moreover, the study suggests to the legislature at EU and national level to consider the introduction of the principle according to which a search must be considered diligent if all relevant freely accessible online sources have been consulted.

Report 2 and its Annexes are available from the Resource page.

EnDOW at the EUIPO Meeting with National Authorities for Orphan Works

The preliminary results of the EnDOW survey on the diligent search requirement across 20 EU member states have been presented and discussed in a Meeting organized by the European Intellectual Property Office with the Competent National Authorities for the Orphan Works Directive and the Orphan Works Database. The meeting took place on 7 December 2016 in the premises of the EUIPO in Alicante, Spain.

Risultati immagini per euipo alicante

 

The purpose of the meeting was to discuss the collaboration between EUIPO and competent national authorities aimed at promoting the use of the Orphan works Database, as well as the practical functioning of the Directive 2012/28/EU and the issue of the diligent searches. The European Commission and representatives of the competent national authorities of 22 Member States attended the meeting.

In his presentation, EnDOW’s project leader Maurizio Borghi discussed the key findings of the survey conducted by the EnDOW researchers on 20 member states. The survey collected evidence on the implementation of the Orphan Works Directive (including the adoption of soft law instruments), on the availability of alternative instruments for making use of orphan or out of print works, and on the sources to consult in order to perform a legally valid diligent search. The survey allowed EnDOW researchers to collect a database of around 1,400 sources across 20 member states. Interestingly – or rather worryingly – a significant proportion of those sources is not available for free consultation online, but their access is restricted in some form.

The presentation can be downloaded here.

The Report with the findings of the EnDOW survey will be soon published on the Resources page.