from the how-did-that-happen? dept
Orphan works (or maybe that should be "hostage works") have become a really hot area in the copyright debate. That's because increasing numbers of people have realized how insane the current situation is whereby millions of older works, that are out of print and have no obvious owners, remain locked away because of copyright. This has led to various proposals around the world to liberate them, while still protecting the copyright holders if they later appear and assert ownership.
Among these is the European Union's Orphan Works Directive. Given the size of the EU and the huge number of cultural artifacts that could be freed up by the right kind of legislation, this is potentially a big deal, particularly in terms of allowing works to be digitized and used in new contexts.
Recently, the European Parliament and the European Commission released a so-called "compromise text" (pdf); it hasn't been passed yet, but it's quite likely to. Here's how Knowledge Ecology International (KEI) summarizes its proposals:
The current text of the proposal will not solve problems with orphan works, but may aggravate them. The proposed Directive should encourage conservation and dissemination of orphan works with adequate safeguards for potential right holders, but it fails to do so. On the contrary, it sets unnecessary limitations on potential beneficiaries, does not solve for-profit use of orphan works and establishes an over-regulated mechanism that could suffocate non-profit initiatives. The purpose of the initiative is not to create additional bureaucratic barriers for a wide dissemination of works whose authors and right holders are neither known nor located... but the current proposed language if unchanged will.
KEI is being diplomatic: the proposed EU Orphan Works Directive is an utter disaster, which actually manages to make the situation worse than it is today. So how did this come about? A clue can be found in an earlier Techdirt story, which reported on a curious 113% turnout during crucial votes of the Legal Affairs (JURI) committee. The topic? Why, orphan works....
Finally, the Proposal may produce unattended consequences by encouraging countries to limit the use of orphan works in their domestic law. If the proposed Directive is as it is today, it could compel country members of the European Union to comply with the standards of the proposal instead of more flexible solution available in their domestic law. In other words, the proposal not only threaten any future positive and more useful development but it may also threaten any current achievement on the matter. This creates an extremely bad precedent on copyright regulation.
Despite years of activities organised and coordinated by the Commission in this area, the proposed Orphan Works Directive is a missed opportunity.