Making the policy: challenges and choices

European Digital Libraries Initiative: the
Stakeholders’ Perspectives
Bruxelles, 14 September 2007
Orphan works and the
cultural sector. A
governmental organisation
Rossella Caffo
Ministero per i Beni e le Attività Culturali – Italy
Coordinator of MICHAEL and MINERVA projects
Presented by Antonella Fresa
MICHAEL and MINERVA Technical Coordinator
Table of content
• Cultural institutions and orphan works
• Need for a EC policy and common
European clearance mechanisms
The HLEGDL – Copyright sub-group report
Cultural institutions and
orphan works
The mission of the cultural institutions includes giving
access to the cultural heritage to as many people as
An important way for achieving this goal is through
digitisation, digital repositories and the Web
IPR and copyright issues have to be addressed for the
digitisation, the publication on the Web, the creation of
services based on digital cultural information and objects
International standard licences (such as Creative
Commons) are now available for those creators (authors,
organisations etc.) wishing to facilitate circulation, redistribution and re-use of their works
Cultural institutions and
orphan works
However, for a significant amount of creative works covered
by copyright, copyright owners are difficult or impossible to
locate or identify. Such works are called “orphan”, as they
apparently lack an intellectual paternity
Orphan works prevent and hinder extensive and systematic
digitisation and online accessibility of cultural materials:
Copyrighted works of any kind may result orphan
Among those, documents of highest historical and cultural
Build heritage
Newspaper articles
Need for a European policy
towards orphan works
Unlike Canada or USA, most European countries are not
currently trying to effectively address the problem.
• Italy, for instance, isn’t moving steps towards its
solution of the problem
A common European framework would stimulate the
solution of the problems and result in a harmonised
approach to the issues involved
• Exploitation of works and online publication cross
• EuDL shall launch massive digitisation in cooperation
with MS cultural institutions, and therefore needs to rely
on a clear and stable legal framework
Need for common European
clearance mechanisms
A European clearance framework mechanism should:
• Include general principles and guidance
• Leave freedom of implementation (customizable at national level)
The framework mechanism would result helpful if:
• Clear: Definition of “orphan work”, definition of criteria to be met in
the search of the rights-holders
• Simple: Its application should result possible and secure for
cultural institutions, without the need for massive legal assistance
• Effective and practical
• Flexible
• Respectful for copyright holders, whose paternity of a work should
be recognisable at any time. Commercially available works don’t
need to be included
• Compatible with any measure implemented by any EU Member
The HLEGDL – Copyright
sub-group report
Principles and remarks by the Copyright sub-group are of
the highest importance. Particularly:
• Cultural institutions need legal certainty in their activities
• The notion and conditions of a thorough “diligent search”
is crucial, and has to be elaborated in detail
• This elaboration should build upon current European
practices (report mentions INA, BL, Deutsches
Filminstitut; further investigation may find out other
• The solution should be flexible and take into account the
various categories of works
The HLEGDL – Csg report:
Need for accompanying solutions
Recommendations by Copyright sub-group should be
endorsed by EC and MS governments:
- To foster inclusion of rights metadata in every digital
object, in order to prevent exponential growth of orphan
works number
- Awaken cultural organisation to enhancement of
contractual practices, especially for those materials
implying a high number of rightholders (such as
- Set up dedicated databases for information on orphan
However, the conclusion:
“Best practice or guidelines specific to particular categories of
works can be devised by stakeholders in different fields, but
legislative measures to define minimum steps or information
sources should NOT be introduced”
suggests that a “soft” approach at EU level is taken, e.g. in the
form of a Recommendation, which would result effective with
respect to:
• The principle that cultural institutions need legal certainty
• The need to guarantee that what is legal in a EU country is
legal in every EU member state
• The need that the EuDL is able to publish and make
available at the same conditions orphan works provided by
all member states
• It would be desirable to take into account a model of
collective license for the purposes of the cultural institutions
• It would be useful to launch a survey to find out which
measures are currently in force in EU Member States and
which practices are followed by the cultural institutions
where national frameworks are missing
• Once a first set of measures is drafted, it could be
submitted to Member States trough a questionnaire, to ask
for their endorsement/opinion
• A public register of works declared orphan should be
foreseen. It may record which works have already been
digitised and by which institution

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