Orphan works are obviously the bread and butter of libraries and even more so for Archives, the very institutions that deal daily and all over the world with unpublished, anonymous but still culturally extremely valuable works. One would think that since there is little economic value for these types of works as well as an obvious international need to preserve and access these types of works, the discussions could go smoothly and result quickly in a new WIPO agreement. However, progress are slow, too slow for the good of copyright!
In brief, the US stated that several agencies in the US are working on orphan works. See for example the Green Paper and the many consultations taken place this year as well as the failed attempt for a national legislation a few years back. Then, the EU described and explained how the Orphan Works Directive works…for Europe.
A passionate representative of the world of Archives, Prof. William Maher followed with two clear and convincing examples of the need to find an international solution on orphan works for Libraries and Archives. Here is his strong statement followed by the equally valuable statement by Ben White (LIBER), the research libraries in Europe on behalf of the many NGOs representing Libraries and Archives at SCCR27. The historical and political aspects of Archives (and “records”) resonated well for many delegations such as Congo’s who also mentioned the strong interest in getting access to national records and archives in foreign institutions.
Society of American Archivists:
Thank you for your patience, thank you for taking time to listen to the concerns of the American archivists.
The issue of copyright and orphan works is more than a legal problem for archives. It is a challenge to our very existence. Archive documents in all parts of society and our purpose is to make the materials available so that the future can learn from the past. Unlike libraries, most archives are not based on collections of works by known authors but focus on unique documents created as every day life by persons that are rarely traceable and it is this characteristic that poses a major challenge for whether we can fulfill our mission in the current copyright environment. Two examples I’ll provide, recently an anonymous donor gave us a photo album identified as nothing other than aunt Mary’s missionary work in India containing over 150 pre 1920 photographs of rural India showing village and agricultural life. All from the parochial, if I may say so, perspective of a white pros assistant American providing two insights into the societies, many have noted the rarity but because of the circumstances the donation, we have no place names, dates, further identifications. Now, crowdsourcing by digitalizing and placing the album on the Internet would yield context wall information to make this valuable — this item a valuable Cultural resource. Clearly this is an orphan work.A simple reading of a copyright without an exception would say we can’t do that. On the other hand, common sense, indeed the archival mandate would say, yeah, absolutely yes.
Second example, the archives of a 20th century anthropologist includes his studies of communities during the colonial era in Latin America. There are also unpublished studies on topics such as cottage weaving in Ecuador, Peru methodology and folklore and land reform in Mexico. All is done by third parties. While those authors’ names may be known, most are untraceable, does the law allow us to make copies of these studies to send to someone in Peru, Ecuador, Mexico or even Belgium and France? Archivists are not expert on international Copyright Law. We cannot be expected to make such decisions, but we do know what our mission is. That mission involves having now to deal with rights procedures meant for published works imposing such huge burdens and costs as to out strip the cost of either digitalizing or even the monetary value of the works themselves. Utah thus, outdated Copyright Laws prevent us from making the world Cultural heritage available. Archivists can in the wait forever for official solutions of the problem of or fan works and the need is mediad and a it will get bigger, more difficult the longer we wait. Without expedition action from SCCR copyright may end up being to archivists at least not just a hinderance but irrelevant to our profession.
Thank you.CHAIR: Thank you very much to the society of American archivists for bringing us an example of what we require, a connection of the general topic of orphan works with a special need of archives and libraries. I invite other NGOs to do so, to bring us rights regarding this connection. We can think about the topic as a general issue, however, we are hearing this under the framework of exceptions for libraries and archives regarding. So thank you very much for that approach.
LIBER
Mr. Chairman. I’m speaking on behalf of all of the library and archive NGOs here on the issue of orphan works and commerce works. Libraries embarked on digitalization projects of public domain projects in their collections since the 1990s, finding legal mechanisms to digitalize post 1874 published analog materials that are still in copyright has been very challenging indeed. (Liber) in Europe this has been an important concern for the European Commission. Because of the fear that in copyright material not born digital will never be digitalized thanks to the copyright barriers that exist.The problem has been called the black hole of the 20th century. Why must we find a legal solution to this black hole of the 20th century? The Cultural educational scientific benefits of digitalizing out of commerce works and orphan works we believe will be enormous and require creativity, the goal of Copyright Law itself, of course, why is this a crossborder issue, collections and research libraries and archives are multinational in origin and multinational in interest.
It is easy to understand why historical collections from Belgium would be of interest in the Congo. Collections from Britain, France, in Africa, India, the Middle East. Collections from Portugal, Brazil, collections from Spain and the whole of South America.
We were surprised to hear the Distinguished Delegate from the European Union yesterday speak to the issues under discussion as ones that lack an international dimension. And that are better addressed by the introduction of exceptions at a national level. The library and archive NGOs don’t share that view. Three years ago of the European Commission had an impact assessment on possible policy solutions to the orphan works phenomena. The solutions under consideration included one, specific individual licenses, two, extended collective licensing, three, state granted licensing, four, the mutual recognition of national solutions, and five, a mandatory exception to apply across the European Union. European has opted for pan European solution, a mandatory limitation and exception to copyright as the most appropriate and efficient solution in terms of firstly the operation of the internal market, secondly, redressing the international knowledge gap, thirdly, reducing operating costs and risks for libraries and archives, fourthly, delivering the best access to collections for researchers and consumers, and finally, as the solution promoting the greatest Cultural diversity across all 27 Member States. The EU commission facilitated memorandum of understanding for the mass digitization similarly have a cross-border principle at their heart, that’s to say a the MOU envisions a crossborder legal effects to protect libraries and archives to digitalize their elections in good faith subjected to litigation in another country. As highlighted already, the collections that sit in libraries and archives are the former colonial powers will have real and direct meaning and interest to the ex colonies. To put another way, many countries’ histories sit in part in collections far away in another part of the world. Mass immortalization will help the post colonialization states access to important documents relating to their own history. A system of legal silos cannot protect a library or archive from legal action in another country. As the European Union has realized in the case of orphan works, in the case of the orphan works directive, the only way to facilitate large-scale digitalization by archives and libraries is to ensure Copyright Law has a crossborder effect. In the modern world of the Internet jurisdictional silos around limitations and exceptions must start to talk to each other. Given the to get century history did not take place in national silos, the library and archive sector believes that 21st century Copyright Laws should not either.
Thank you.