Digitisation of copyrighted works is in growing demand, and books are increasingly being made widely available in digital form. Two forms of works however – orphan and out-of-commerce works – are in danger of missing out, said speakers at a recent World Intellectual Property Organization event, and there is a risk of forever losing an important part of our cultural heritage embedded in these works. Another panel, meanwhile, illustrated that laws on copyright and licensing also present obstacles to cross-border use of digitised works by universities, libraries and archives.
The issues were addressed in two side events to the WIPO Standing Committee on Copyright and Related Rights (SCCR), held from 28 April to 2 May.
At a 1 May event organised by the International Federation of Reproduction Rights Organisation (IFRRO), speakers shared national legislation and new initiatives to digitise and make available these two types of works.
Orphan Works
An orphan work is a copyrighted work, whose author or other rights-holders are not known or cannot be located or contacted. Therefore, authorisation to digitalise the work cannot be obtained, and there is a risk of infringement if a rights-holder reappears. Legislation has tried to confront this issue by determining steps to be taken to identify orphan works to minimise the risk of “false positives” but also ensure fair compensation in case of return of rights-holders.
Damian Schai, lawyer for the International Association of Scientific, Technical & Medical Publishers, presented the European Union Orphan Works Directive, which entered into force on 28 October 2012, including the requirements of “diligent search” and “permitted uses”. The full text is available here.
Hong Taek Chung, president of Korea Reproduction and Transmission Rights Association, presented Korean national law on orphan works, which has simplified the inefficient and cumbersome obligation for “considerable effort” to identify right-holders before permission can be granted to use orphan works. Korea is also currently considering the use of extended collective licensing to deal with orphan works.
Digitising and Making Available Out-of-Commerce Works
Carola Streul, secretary general of European Visual Artists, presented the European Commission-facilitated Memorandum of Understanding (MoU) on Out-of-Commerce Books, signed in September 2011 by ten organisations representing stakeholders, including authors and publishers associations, and library organisations.
It defines out-of-commerce works as those that are “no longer commercially available in customary channels of commerce, regardless of the existence of tangible copies of the work in libraries and among the public.” A summary of the memorandum is available here.
The MoU sets out “key principles on the digitisation and making available of Out-of-Commerce Works (OOC) by publicly accessible libraries and similar institutions in the European Union.”
As illustrations of the implementation of MoU at the member state level, two contemporary projects launched in France and Germany have been presented.
The French initiative “Registre des Livres en Réédition Electronique” (RELire) administrated by the French National Library (BnF, acronym in French), explained Juliette Dutour, project lead, is aimed to digitise and make available books published in France before 2001, which are still under copyright but no longer commercially available.
The BnF is responsible for creating and maintaining the Registry. On 21 March of each year a new list is issued, and in 2013 more than 60,000 books were listed. A scientific committee, comprising three authors, three publishers and one member of the BnF, must validate the content of the list with regard to four legal requirements: books must be copyrighted, in French, out of commerce, and from the 20th century.
Before transferring this list to the Société Française des Intérêts des Auteurs de l’Ecrit (SOFIA), the collective management society in charge of delivering licences for digital publishing, and ensuring a fair remuneration to authors as well as right holders, copyright holders of works appearing on the list have a period of six months to opt out.
On 21 September 2013, 55,000 books were listed, the first e-books should be available for commercialisation by the end of 2015.
The authority for this project, explained Christian Roblin, director of SOFIA, is premised in the French legislation relating to the re-issue of out-of-commerce twentieth-century books in digital format, passed on 1 March 2012, allowing these books to be digitised.
“The aim of the legislation was to devise a self-contained, effective and original system, which at national level would be under the control of the rights holders themselves and would respect copyright,” he said.
In the same line, Elisabeth Niggemann, director general of the German National Library, presented the recent German legislation on the use of orphan and out-of-commerce works, which entered into force on 1 January 2014. The full text is available here.
It introduces a collective management system for out-of-commerce works by creating a legal presumption in favour of national reprographic rights organisations to administer the rights of non-mandating right holders.
Conditions need to be fulfilled, namely that the works were published in Germany before 1 January 1966; works are contained in the collections of publicly accessible libraries, educational institutions, museums and archives; use of the work is only for non-commercial purposes; right holders have a right to object at any time as well as a right to fair remuneration; and the works are entered into a public registry of out-of-commerce works which will be held by the German Patent and Trademark Office.
Under this process, this project will ensure that 80 percent of books printed in Germany, identified as out-of-commerce, do not fall into what Niggemann calls “the black hole of the 20th century.” However, some challenges remain to be addressed including digitization strategy, fund raising, fee structure or the implementation of the technical process.
Paola Mazzucchi from Arrow Association also gave a demonstration of the new online tool ARROW to assist stakeholders in digitisation projects to search for rights and commercialisation status of text-based works.
Global Contribution of Libraries and Archives
Separately, the International Federation of Library Associations and Institutions (IFLA) hosted a side event to the SCCR on 2 May on “Information Without Borders: a global library and archive ecosystem.”
Speakers presented on-going activities at their libraries and archives institutions with regards to research and innovation, and digitization and preservation of works. The extent to which these projects require cross-border collaboration demonstrates that an international solution is needed to address some of the copyright and licensing challenges that can arise.
Paul Ayris, president of LIBER and director of library services at University College London, highlighted some of the barriers that licensing and copyright laws produce for European universities.
“A big part of the educational outreach in the developed world” he said, are universities’ online courses, which “bring massive challenges on copyright.”
Additionally, most licensing agreements do not allow use of licenced materials by students on overseas campuses or for remote learning, so universities need to pay additional fees for extensions on licences.
Ayris called for an international agreement on a licensing solution to these issues, and for exceptions to copyright laws for use of purchased materials for data mining.
Ronan Deazley from the faculty of Law at University of Glasgow and Scottish Council on Archives illustrated the global nature of archives. They often involve copies gathered from overseas jurisdictions, such as government and business records, he said. New generations of users expect them to be made available online everywhere in the world, and they are essential in providing evidential and political value, he added.
Trish Hepworth, copyright adviser for the Australian Libraries Copyright Committee and representative of the Australian Library & Information Association (ALIA), demonstrated some of the cross-border and licencing issues experienced by libraries in Australia.
Cross-border inter-library loans present huge barriers to libraries and users in getting hold of documents that can only be sourced from limited libraries. International copyright laws pose restrictions to digitisation and digital delivery of works, as well as online use for education and preservation efforts.
Speakers also included Barbara Szczepańska, from the Poznan Foundation of Scientific Libraries, who called for collaboration at the domestic level as well as international cooperation.
Manon Ress, director of Information Society Projects at Knowledge Ecology International, also suggested breaking down the issues currently being discussed for a treaty on exceptions and limitations at the SCCR, to identify whether issues may be better addressed in the short or long term, and by binding, optional or soft law.