The Diligent Search Manual is now available to assist users to carry out diligent searches using our bespoke online tool. The Manual explains the essentials of diligent search in a clear and accessible manner, so that also users with no specialized legal knowledge can complete the process requested by the Orphan Works Directive and implemented in the online tool.
The Manual has been developed by Vicky Breemen and is constantly updated.
The Orphan Works Directive requires that Member States determine, for each category of works, the sources that beneficiary organizations must consult when carrying out a diligent search. EnDOW researchers have conducted an extensive survey on the implementation of the Directive in 20 Member States. As part of the survey, they have collected the complete list of sources that are required under the laws of 20 Member States. This gives an impressive overall number of 1,768 sources for the countries covered by the project, not all of them freely accessible to the public (for a critical examination of the sources see the summary and the complete Reports in the Resources page).
Full details on the sources for each country are available in the Annexes to the Reports 1 and 2 (see Resources)
For an overview of data for the 20 countries (decisions processes and list of sources) click here.
Click on the links below to access the sources for each country:
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.
Back in 2006, the US Copyright Office identified the orphan works problem as one of the major obstacles to “productive and beneficial uses” of works that have been created in the last century. These include most of our recent cultural heritage as embodied in books, journals, photographs, films, sound recordings, visual arts: a wealth of published and unpublished material that is preserved by memory institutions across the world.
In the last decade, the orphan works problem has been at the top of the cultural agenda of governments and legislators alike. Yet, despite major legislative initiatives (above all the EU Orphan Works Directive of 2012) and positive judicial treatment (the finding of fair use in favour of HathiTrust and Google Books in the US), the problem is far from being solved. The requirement of “diligent search”, as contained in orphan works legislation, is a major practical and financial hurdle. The scope of the permitted uses of orphan works under the fair use defence is uncertain. Briefly, making use of orphan works, engaging in productive and beneficial use of our recent cultural heritage, is still a costly, complex and risky activity.
The EnDOW project was launched two years ago with the aim of researching the legal instruments of “diligent search” in the EU, to turn these into an online platform that allows crowdsourced diligent search processes in order to investigate the potential application and challenges of such a platform.
This Symposium will bring together the findings of EnDOW researchers and those of fellow scholars around the world, in order to explore innovative approaches to the problem of orphan works. Technology, legal regulation and best practices will be thoroughly discussed and tested by the participants.
10.30-13.00 – Technology, law and diligent search: the EnDOW project and beyond
Maurizio Borghi and Marcella Favale (CIPPM, Bournemouth University): Orphan works in Europe and the EnDOW project: where we are and where do we go from here
Lillà Montagnani and Aura Bertoni (ASK, Bocconi University, Milan): The challenge of diligent search: a survey on 20 EU Member States
Kris Erickson (CREATe, University of Glasgow): Current practices in right clearance for orphan works in Europe
Victoria Stobo (CREATe, University of Glasgow): ’I should like you to see them some time’: an empirical study of copyright clearance costs in the digitisation of Edwin Morgan’s scrapbooks
Leontien Bout (Eye Institute, the Netherlands) Dealing with orphan works: a film archive’s perspective
Maarten Zeinstra (Kennisland): Crowdsourcing right clearance for Orphan works, the EnDOW Platform
14.00-17.00 – Regulatory approaches and practices
Annabelle Shaw (British Film Institute): The BFI Digitisation Project
Meredith Jacob (American University) Best Practices in Fair Use of Collections Containing Orphan Works
Dan Hunter (Swinburne University of Technology): Blockchains, orphan works and the public domain
David Hansen (Duke University): Orphan Works in Practice: Successes and Challenges for US Cultural Heritage Institutions
Franck Macrez (CEIPI, University of Strasbourg): The French case: from orphan to out-of-print books (and vice versa)
Peter Jaszi (American University): Orphans in America: A history of failure in public policy
17.00-17.30 Concluding remarks
Venue and accommodation
The Executive Business Centre is located in Bournemouth, at 5 minutes walk from the train and bus station. When leaving the station, head to “Town Centre” and “Seafront”. You will see the building on your left. (see directions here).
Trains from London leave at every hour (.05) and half-past hour (.35) from Waterloo Station, and take about 2 hours (direction: Weymouth or Poole). (See train times and tickets here or here).
If you arrive by car, please ask the organizers to book a parking space for you at the Executive Business Centre.
The lovely seaside resort of Bournemouth offers a broad variety of accommodation. The following are in close range from the Executive Business Centre:
CREATe organized two events on Friday 20th January 2017 to launch the Digitising the Edwin Morgan Scrapbooks Project: a free training event about digitising photographs and the launch of the web resource. The collection of Edwin Morgan Scrapbooks – a unique and culturally significant mixed-media collection of artistic work from the early to mid-twentieth century – is one of the case studies selected by EnDOW researchers Kris Erickson and Victoria Stobo will carry out right clearance simulations.
The third progress meeting of EnDOW was organized by CREATe at the University of Glasgow, on 19-20 January 2017. The agenda covered, among other things, the consolidation of the analysis of diligent search in 20 countries and the final draft of the flowcharts of operations for the EnDOW digital platform, which will be in operation in the next months and will be officially presented in June.
The article presents the conceptual framework that is at the basis of EnDOW and discusses the various dimensions of crowdsourcing as applied to diligent search for orphan works. The abstract of the article reads:
Digitization of 20th Century cultural heritage is severely restricted due to the real or potential subsistence of copyright and related rights. Under the laws on orphan works introduced in many countries, items whose copyright status is uncertain may possibly be lawfully digitized, on condition that a “diligent search” of the copyright owners has been performed. However, carrying out diligent searches on large collections is a lengthy and expensive process, which may discourage institutional users from embarking on large-scale digitization. While the problem of performing diligent searches has been so far approached in a “centralized” manner by individual institutions, the article suggests a de-centralized approach based on crowdsourcing certain phases of the diligent search process. The proposed solution may alleviate the problem of the high costs of diligent search, and may ultimately enable cultural heritage institutions to take full advantage of the orphan works legislation. Suitability of the crowdsourcing solution to the cultural heritage sector is discussed and challenges to implementation are identified.
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 working group was composed by the project participants, the members of the advisory board and experts and practitioners of the relevant sector. Overall, 30 participants took part to the workshop.
Three main presentations opened a very useful and enriching discussion focused on the diligent search requirement and the process of crowd-sourcing.
Firstly, Maurizio Borghi briefly summarized how a diligent search must be carried out, stressing the requirements provided by the European Directive on orphan works, their ambiguities and possible interpretation.
Then, Maarten Zeistra focused on the crowdsourcing, trying to figure out how to made this mechanism effective and efficient and providing the group with examples in this sense.
The third presentation has been made by Gyta Berasniviciute of EUIPO which provided the group with an overview on the implementation of the Orphan Works Database, its interface and mode of operation. The working group also made a search simulation through the database.
“Food for thought” has been shared by the group and the project participants had the opportunity to listen to the opinion of experts and workers in the sector of libraries and archives.