The Making of an 'Orphan': Cultural Heritage Digitisation in the EU

Abstract

As the definition of accessibility of cultural heritage changes under the impact of new technologies, public and private actors seek new ways to enhance digital access. The digitisation of 20th Century cultural heritage, however, is severely restricted by the potential subsistence of copyright and related rights. Different solutions have been considered to deal with this problem and, in particular: the adoption of a specific exception to copyright for libraries and other institutions with similar purposes (as in the United Kingdom and Germany); the use of the mechanism of extended collective licensing (as in Nordic countries); the creation of collecting societies responsible for the licensing of orphan works; the introduction of a public body in charge of licensing in a system of compulsory licenses (as in Canada); the limitation on remedy rule (as in the United States); or, finally, the adoption of national laws that provide for the automatic recognition and accessibility of orphan works as indicated in the other Member States. The EU’s own response has decidedly bet on the introduction of a copyright exception, through the Orphan Works Directive (2012/28/EU, hereinafter the “Directive”), which is thought of as an instrument to allow libraries, museums and other cultural institutions to digitise their collections of 19th and 20th century works. The Directive could potentially allow to lawfully digitise and make available a large number of works also with uncertain copyright status. Pursuant to the Directive, a work can be considered an orphan if, after a diligent search, its legitimate right-holders cannot be identified or located. Then, the EU pursued the scope to facilitate the digitisation and, consequently, the dissemination of works qualified as orphans, after a consultation of a large number of sources. Despite the emphasis which has surrounded its adoption, preliminary evidence shows that cultural institutions do not consider the scheme introduced by the Directive as scalable; in other words, they do not plan to use it as basis for mass digitisation projects. On the one side, the diligent search requirement is considered too onerous; on the other side, little attention is devoted to the underlying business models that would encourage digitisation. The involvement of private actors appears indeed limited to non-for-profit interventions, which explicitly rules out the main and principal digitiser on the global scale – the Google Books project. In this paper, we analyse the impact of the permitted uses on the digitization process of cultural heritage that can be carried out by those cultural institution benefitting from the exception. We will focus on the activity of making available (section 2) and reproduction for the purposes of digitization, making available, indexing, cataloguing, preservation and restoration (section 3). The division at hand is useful because the orphan work issue asks for different treatment depending on the type of use that would be made of the concerned works. On this background, we move to analyse the interaction between private and public sector in the field. In particular, we firstly analyse the ways into which the current framework envisages the funding of digitization processes and its limits (section 4). Within this context we assess the impact of public-private partnerships (section 5) to conclude by highlighting the weaknesses of the current EU framework for orphan works and its difficulties in achieving the goal of contributing to the creation of a European digital cultural heritage (section 6).