EBLIDA statement on Orphan Works presented at the EC hearing on October 26th, 2009

I am the Director of EBLIDA and represent the libraries of Europe. We’re here to discuss the orphan works “problem”: why current law does not allow the exploitation of these works and what we should do about it.

Currently the only option for digitizing some orphan works in some European countries is through extended collective licensing with right holders organizations. I would like to explain to you why in addition to that option, we need to have a mandatory exception to copyright available in all Member States.

We are in the middle of the transition from the print-based library to the digital library. The digital library makes its material available to its patrons online and in digital formats by communicating via computer networks. In order for European libraries to fulfil their role as digital libraries, large-scale digitisation projects are necessary and Europeana is one of them.

Libraries already hold copies of items which are of great potential value to the information society – not just books but photos, letters, recordings, newspapers and magazines. Libraries increasingly have the technical means and knowledge required to digitize en masse, and they have the responsibility to build a global digital library for the preservation of and access to these items for existing and future generations. I must emphasise that libraries have no wish, and no need, to digitise works which are available through normal commercial channels. However, certain obstacles stand in their way of which the digitization of so-called orphan works is probably one of the most simple to remove.

To understand the problem better, we can look at digitization in three steps:

1.  understanding if permission is needed to digitize an item and if it is needed, obtaining that permission,
2. the technical conversion of the items from analogue to digital format,
3. the making of the digital items available to the user.

The first step involves knowing if the item is in copyright or in the public domain. Items in the public domain require no permission or remuneration and the library can move straight onto the second and third steps of converting the items into digital format and making them available to the public. We can be pretty sure that items produced before 1850 are all in the public domain and that is why most digital libraries contain only these very old items.

However, it is the more recent items that are of greater value to education, research and the information society, and a great number of these items are not of any commercial value. If a right holder is identified and gives permission then the digitization can take place. However, orphan works have no known right holder who can grant permission without which the item cannot therefore be digitized. The search for such right holders is so costly and timeconsuming, with such little guarantee of success, that libraries simply do not pursue it for many items.

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