Taylor Vanderhelm is a JD candidate at the University of Alberta.
The European Commission recently revealed its proposal to overhaul the European Union’s intellectual property law regarding orphan works. The move is seen by many as an attempt to update and unify the European Union’s standards in light of technological advancements.
The goal of the proposed directive is to ease the threat of liability for copyright infringement when the original owner is undiscoverable in order to bolster innovation and accessibility of information online. Orphan works are copyrighted works whose owners are unable to be contacted in order to obtain permission for use. The lack of legal certainty arising from the existence of orphan works provides significant barriers to the aggregation and sharing of said works online, particularly for museums, archives, and libraries. To illustrate, the British Library estimates that 40 percent of their copyrighted collections are orphan works. As a result, many works remain hidden from public view due to the exposure to potential lawsuits.
The proposed directive has laid out three key requirements before orphan works can be safely used. First, the proposal lays the ground work for identifying orphan works requiring a diligent search using databases and registries. Secondly, if this search does not reveal the location or identity of the copyright owner then it is officially labeled an orphan work. This status would then be recognized throughout the European Union. Furthermore, the directive also provides for a generally accessible record of all recognized orphan works. Lastly, the proposal establishes the ways in which various orphan works may be made available online until the copyright owner is properly identified.
The move to provide for lawful cross border access to online orphan works will provide significant benefits for researchers and citizens who will benefit from a streamlined process by receiving much greater access to otherwise unavailable works. The European Commission is also seeking to energize the EU funded internet library, Europeana, in light of stiff competition from Google. Google has made significant strides in their internet book service and Europeana is struggling to compete under current EU laws. Music services such as Apple’s iTunes also stand to benefit from the proposal as they currently must deal with each EU country separately before selling tracks across the bloc.
Despite the compelling goals, the proposal has raised the ire of some critics who claim it unfairly takes advantage of the “little guy.” While there is little controversy surrounding the orphan use of ancient works, the reality of the Internet is one where intellectual property is often stripped of its identifying information while being broadly disseminated. Critics argue that this could pose significant damage to individual copyright owners whose work can no longer be traced to them. It appears that the commission has attempted to address this issue by providing steps for legitimate copyright owners to re-establish their copyright and end the orphan work status.
Traditional approaches to intellectual property continue to be challenged by advances in technology. The European Commission’s orphan works proposal is yet another demonstration of lawmakers attempting to adapt and evolve to new realities while still adequately protecting established norms. While some may disagree with the way such changes may be implemented, there is little doubt that such retooling is desperately needed in a rapidly evolving world.
