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International Orphan Works
by Brad Holland
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March 14, 2006
The European Union is also considering the problem of orphan works. Here’s
the submission of IFRRO (The International Federation of Reproduction
Rights Organizations) to the i2010 Digital Libraries project. The
excerpts (below) and emphasis are ours.
“Digitisation is an act of reproduction subject to the authorisation of
the copyright holder.
“On the basis of Article 5(2)(c) of the Directive 2 001/29, exceptions
have been introduced in favour of libraries and archives that allow these
institutions to reproduce works without prior consent of the
rightsholders, mainly for preservation purposes. These exceptions do
not cover and should not be extended to cover reproductions on a mass
scale, which would clearly conflict with the normal exploitation of works
and prejudice the legitimate interests of the copyrightholders, and would
thus not pass the three step test of the Berne Convention and Article 5.5
of the Directive200/l29 (p. 2)
“It is...essential that co-operative projects also ensure that the
activities carried out do not interfere with the commercial interests and
the potential development of the rightsholders' own business models.
Digitisation and/or the making available of works must not undermine the
right of the creators or the commercial sustainability of the publishing
industry. (p.3)
“From a legal as well as an economic point of view, orphan works cannot be
neglected. A pragmatic and proportionate solution might be for national
copyright legislation to establish a basis for licensing mechanisms which
provide that anyone who seeks permission to make a copyright use of a work
and cannot locate the rightsholder could petition and/or get permission
from an entity to digitise and make the material available from an entity
established for the purpose of providing such clearance/payments. Such
solutions have already been established in some countries, both in and
outside Europe, for the library as well as other sectors. On the basis
of specific requirements, a licence could be granted for the proposed use
on specifically set terms. The entity would hold the collected fees in
trust for the rightsholder to claim. This solution could be established
without the introduction of a new exception to the exclusive rights.
(p.4)
“The main challenges posed by large scale digitisation of copyright works
are practical ones of how licensing schemes can be organised and
administered and not a lack of willingness on the part of the
rightsholders to co-operate. The existence of orphan works and
ascertaining whether works are still in copyright are among the practical
problems to be overcome. In order to digitise works in copyright,
permission is needed from the rightsholders concerned.” (p.5)
For full text go to: http://www.ifrro.org/show.aspx?pageid=home
-- From The Illustrators’ Partnership of America
This may be republished, posted or forwarded in its entirety to any
interested party.
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