EU Directive On Orphan Works So Bad It Makes Things Worse

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.

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.

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….

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Comments on “EU Directive On Orphan Works So Bad It Makes Things Worse”

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18 Comments
That Anonymous Coward (profile) says:

Why is it when it comes to Copyright the burden always falls on everyone but the rightsholders?

Everyone has to go and renew their drivers license on a specified schedule, if you do not you no longer have a valid license and there will be penalties levied if your caught driving.

Why do we not just require rightsholders to get off their asses and keep their record up to date?
If you miss your renewal date 2 times, it isn’t orphaned and waiting – it goes irrevocably into the public domain.
Rightsholders will scream bloody murder about this, and that is the penalty levied. You can scream all you want, but if you don’t put in the effort you lose your rights to the work.

The system should not be there to chase after you to make sure they are keeping track of your holdings, it is your job. It is high time we push back against rightholders who enjoy demanding laws, threatening bankrupting meritless lawsuits, and just bully everyone else to police their holdings. Bear the burden of your gifted exclusive rights on your own shoulders and stop shifting the responsibility to everyone else.

Anonymous Coward says:

Re: Re:

“Why do we not just require rightsholders to get off their asses and keep their record up to date?”

That’s the way it was pre-1976.
To receive copyright protection, you had to pay a fee, file paperwork and send two copies of the work (book, magazine, tv/movie/radio script etc) to the Library of Congress.
Plus, you had to re-file after 28 years to receive another 28 years of protection for a total of 56 years.
After that, unless you presented a re-written/redone version, the work was PD.

Actually, the ORIGINAL version was still PD, but you could copyright a modified version under the same title.
That’s what JRR Tolkien did after his original edition of LORD OF THE RINGS became PD in the US due to his British publisher invalidating any US copyright because they imported too many copies of the British edition into the US!
American publisher Ace Books then issued the trilogy in paperback due to it’s PD status.
While Tolkien couldn’t legally stop them from selling the now PD version, he rewrote/re-edited the trilogy, filed for a US copyright, and sold the rights to Ballantine, where the “officially-authorized” versions outsold the Ace Books version (which was never reprinted).
Ironically, Ace Books had been a haven for authors to do exactly the same thing Tolkein did so genre writers could re-establish copyright on their older stories!
(Most of the legendary “Ace Doubles” books were rewrites of earlier stories!)

But, back to the discussion; Walt’s House of Mouse pushed for dropping the pre-1976 “restrictions” because they were too expensive (filing fees) and required too much manpower to perform the tasks.
When the Mouse squeaks, Congressmen tremble!
That’s why we’re in this mess today.

That Anonymous Coward (profile) says:

Re: Re: Re:

Its been 36 years and what I will conservatively estimate at a ton of money, and they can’t figure out how to make a cost effective system?

How is it to much work and costs to much to do some paperwork to keep your rights updated? We can’t come up with a system where they can call an 800 number spend 45 minutes on hold and press 1 to renew?

Lets gut the whole damn system and try again, this has been a failure.

Anonymous Coward says:

when it was discovered/pointed out about the 113% vote over this, the re-vote was refused. i wonder if that would be the case now? after what happened over ACTA and how people are keeping/going to keep a much closer eye on things and certainly how EU ministers conduct themselves and the business of representing the people. i am surprised that there hasn’t been more about this issue released. however, if i read the report correctly, the European Commission (Karel de Gucht again?) is involved in this, as they were with ACTA, so i am not surprised at what is going on. it’s about time someone told the Commission that it is known exactly what they are up to and that it definitely isn’t for the benefit of the people! if not an individual then certainly the EU Parliament needs to do it’s job! to keep moving goalposts to protect those that have done nothing to deserve copyright protection is pathetic! failing that, just take the whole bloody lot, everything, and give the people nothing. i wonder how much that would slow down progress?

Zakida Paul says:

My Copyright Reforms

Copyright lasts for a max term of 35 years and cannot be renewed unless the creator is still alive
After the 35 years the content automatically goes into the public domain.
After 20 years Copyright automatically goes to the creator and the creator alone.
After 10 years the creator can make an application to take back the Copyright ownership.

Obscurity & 1 Sugar in my Coffee says:

Hidden Censorship

Isn’t the result of such suppression of antiquated orphaned works really a suppression of antiquated dreams, thoughts from a different era, provocations that were instilled by different economic and sociopolitical times, and an attempt to see that everyone, especially the young impressionable youth, march to the beat of a different drum? ~a drum that is in control sociopolitically and fears it could be locked away in this same manner and will do all it can to prevent its demise?

Manfred Manfriend says:

Orphaned or Hostage--who cares?

Copyright has become so ridiculous that the only sane answer is for people to disregard it wholesale!

The average person has decided to ignore copyrights altogether as an unworkable mess which doesn’t apply to them. The only time they worry about copyright is when they seek to do anything commercially. Otherwise people simply google for images to use on their webpages and blogs, make their own music videos of their favorite bands and shows, write fanfiction using characters created by others, do fanedits of their favorite movies, etc etc…

They’ve moved on. Copyright is dead for all practical purposes.

jupiterkansas (profile) says:

Re: Orphaned or Hostage--who cares?

Yet at any time the hammer of the law can come down on anyone’s head whenever the copyright holder demands it, and the financial damages can easily destroy their life.

And with orphan works, even if someone wanted to use it commercially they couldn’t.

Ignoring the law is not a solution. The law must be changed.

Manfred Manfriend says:

Re: Re: Orphaned or Hostage--who cares?

>>The law must be changed.

Sure, let’s all ask real nicely if the cat will allow us to place a bell on its collar…

>>And with orphan works, even if someone wanted to use it commercially they couldn’t.

Wait–people are still trying to make money in this marketplace?? LOL, seriously why bother? Even if you do come up with something new you’ll just get sued or pushed out of the market. And newsflash: The MAFIAA already take and use orphaned (and non-orphaned) works all the time. Don’t like it? Sue them. They’ve got plenty of lawyers on retainer so all they have to do is wait until they’ve bankrupted you.

We’re serfs. Why even try? Let it all fall apart.

>>Yet at any time the hammer of the law can come down on anyone’s head whenever the copyright holder demands it, and the financial damages can easily destroy their life.

Can’t bleed money from a stone. I have absolutely nothing to lose.

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