The “usual” OW numbers
• British Library estimates that 40% of works in
its collections are orphans.
• Over 1 million hours of TV programming from
BBC archives not used due to the impossibility,
or the disproportionate cost, of tracing
rightsholders + risk of subsequent legal
• Works and phonograms :
i. first published in a MS or,
ii. in the absence of publication, first broadcast in a MS or,
iii. in the absence of publication or broadcast, made publicly
accessible by the beneficiaries of the Directive with the
consent of the rightholders
• Literary, cinematographic and audiovisual works and
phonograms in the collections of publicly accessible
libraries, educational establishments, museums, film and
audio heritage institutions, and public service
broadcasting organisations established in the EU.
• No stand-alone photographs and other images but
possible future inclusion.
• One of the early reasons for adopting an EU directive
was to favour:
– Development of attractive content offers like the Google
Books Library Project, and so
– EU competitiveness.
• But: only publicly accessible libraries, educational
establishments, museums, archives, film or audio
heritage institutions and public-service broadcasting
organisations in order to achieve aims related to their
• Commercial undertakings excluded from beneficiaries.
– Public/private partnerships for digitisation and making
available to the public of orphan works.
• Reproduce and make available to the public
orphan works .
• Member States shall adopt a specific exception or
limitation to the rights envisaged in Articles 2 and
3 of the InfoSoc Directive.
• “Diligent search” (national implementations).
• Commercial exploitation for the exclusive
purpose of covering the costs of digitising and
making orphan works available to the public.
• Limited beneficiaries
– Cf early justifications for EU intervention.
– Public/private partnerships will be the norm?
• Limited uses
– Scanning and placing works on the internet.
– No widespread commercial exploitation.
– But (at least?): Cross-border recognition OW status.
• When is a search “diligent”?
• National initiatives
– Rights management;
– To address larger mass digitisation issues, eg out-ofcommerce works.
States free to
in the area of
• No restrictions as to the types of works that
might be subject to the OW treatment.
• Stand-alone photographs and other images
may fall within the scope of Section 116A
CDPA implementing regulations.
• Published and unpublished works.
• Including non-UK or -EU works.
• No restrictions as to potential beneficiaries of
Section 116A implementing regulations.
• So also commercial undertakings.
• Grant of licences to do, or authorise the doing
of, any act restricted by copyright.
– But licensing body may be required to consider any
potentially derogatory alterations.
• Diligent search (may involve searching abroad).
• ERRA silent as regards the possibility of allowing
commercial use, but why not?
• ERRA much broader than OW Directive
– Does ERRA supersede OW Directive, at least for works to
be exploited in the UK?
• Does the Directive allow broad independent
national initiatives in the area of OWs?
• What if other MSs followed UK example?
– Would OWD implementation be meaningful?
– Would effectiveness of EU action in the area of OWs be
• Do such initiatives violate principle of EU preemption?
Why Sylvia Plath quote
• Not just because 50th anniversary …
• Great expectations about OWD
– But very limited instrument
• Wait for national implementations but national
initiatives like UK one are quite telling …
• Has the OW problem been solved in the EU?