Recognizing that existing intellectual property rights (IPR) regulations were out-dated “in light of new technology, the continuing rise of the Internet and innovative business models,” the European Commission recently unveiled a blueprint of IPR initiatives to be implemented during its current mandate.  One of the four initiatives of the so-called IPR Strategy is an attempt to eliminate what has become a serious obstacle to recent European efforts to digitize its cultural heritage — orphan works.

Orphan works are copyrighted materials for which the copyright holder cannot be contacted, identified, or located.  Without the copyright holder’s permission, potential users of these materials are hesitant to incorporate them into contemporary works that are made available to the public for fear of later being accused of copyright infringement.  Therefore, libraries, museums, and archives have been unable to fully participate in the Digital Agenda for Europe, an effort aimed at increasing accessibility to Europe’s intellectual and cultural heritage by creating digital versions of collections.  The British Library, for example, estimates that 40 percent of its copyrighted collections are orphan works.

Recognizing the obstacle orphan works pose for large-scale digitization projects, and asserting that Europe had to catch up with the United States, where Google has been creating digital libraries of printed works for years, the Strategy’s statement declares that the European Union has to provide lawful, cross-border online access to orphan works.

To that end, the Strategy sets out a three-part process for overcoming the problem of orphan works.  First, the Strategy establishes how to conduct a diligent, thorough search to find copyright holders before creating a digital version of copyrighted material.  Second, if the search does not reveal the identity or location of the copyright holder, the work is officially recognized as orphan.  Such orphan works will be included in a generally accessible registry and will hold orphan status throughout the European Union.  Third, the Strategy describes how orphan works can be made available online without prior authorization until the owner is identified and found.

The European Commission’s effort to permit the publication of orphan works is laudable, as multiple stakeholders will benefit if the proposals are implemented.  Libraries, archives, and museums will no longer have to fear copyright suits, which will in turn allow for the digitization of entire collections.  Digitizing collections not only promotes “Europe’s cultural diversity and increases sources of knowledge and learning,” as described in the Commission’s statement, but also serves as a safeguard, should the original materials be lost, damaged, or rendered unusable for any other reason.  Furthermore, academics and researchers will be able to use information that may have otherwise remained unknown or inaccessible.  The general public will also benefit by having access to orphan works from all over Europe.

Therefore, so long as efforts at liberalizing accessibility to orphan works do not rescind an owner’s copyright rights, such efforts should be encouraged for the cultural, academic, and intellectual benefits they confer upon society.

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