Ten Years Later, The EU Orphan Works Directive Is Officially A Failure – Just As The Copyright Industry Intended
peter.suber's bookmarks 2022-12-16
Every so often, Techdirt writes about the long-standing problem of orphan works, the huge collection of older creations that are out of circulation and have no obvious owners. Arguably, they should be called “hostage works”, since they remain uselessly locked away by rigid and outdated copyright laws, to no one’s benefit. Despite that, the copyright industry always fights hard against the outrageous idea that we should make it easier to bring these works back into circulation, where people can enjoy and use them.
One of the worst results of that attitude is the EU Orphan Works Directive, passed ten years ago. It started out as an honest attempt to free hostage works for the benefit of society. But along the way, the copyright industry lobbied long and hard to make the resulting law so bad as to be useless. One minor concession granted to the many critics of the final text was that the European Commission was required to submit a report by 29 October 2015 on how the Directive was working. The Commission has finally published the report (pdf) – a mere seven years late. It’s hard not to feel that the Commission delayed the publication of the report as much as possible because it is so damning. Here’s the key finding:
orphan works make up a large share of the collections of cultural heritage institutions. However, 8 years after the transposition deadline, the Directive has been rarely applied in practice. Stakeholders are divided on whether the Directive has led to improvements in the digitisation and dissemination of orphan works. The use of the exception provided by the Directive to digitise and disseminate orphan works seems to be very limited if the low number of recorded works in the EUIPO database is taken as the benchmark.
In other words, the Directive has been an embarrassing failure. Far from leading to a blossoming of culture through the renewed availability of orphan works as its original supporters hoped, it has become the legislative equivalent of abandonware. The report goes on to explain that the main reason the Directive has failed is that the process of liberating a hostage work is too “burdensome”. That’s a direct result of the copyright industry insisting on all kinds of unreasonable limitations and disproportionate “safeguards”, supposedly to stop the release of orphan works somehow undermining copyright. They were, in fact, conscious impediments designed to make the entire Directive so awkward to use that no one would bother. The belated European Commission report confirms that they have worked.