1. Orphan works and the cultural sector. A governmental organisation perspective Rossella Caffo Ministero per i Beni e le Attività Culturali – Italy Coordinator of MICHAEL and MINERVA projects Presented by Antonella Fresa MICHAEL and MINERVA Technical Coordinator European Digital Libraries Initiative: the Stakeholders Perspectives Bruxelles, 14 September 2007

2. Table of content Cultural institutions and orphan works Need for a EC policy and common European clearance mechanisms The HLEGDL – Copyright sub-group report Conclusions

3. Cultural institutions and orphan works The mission of the cultural institutions includes giving access to the cultural heritage to as many people as possible An important way for achieving this goal is through digitisation, digital repositories and the Web IPR and copyright issues have to be addressed for the digitisation, the publication on the Web, the creation of services based on digital cultural information and objects International standard licences (such as Creative Commons) are now available for those creators (authors, organisations etc.) wishing to facilitate circulation, re- distribution and re-use of their works

4. Cultural institutions and orphan works However, for a significant amount of creative works covered by copyright, copyright owners are difficult or impossible to locate or identify. Such works are called orphan, as they apparently lack an intellectual paternity Orphan works prevent and hinder extensive and systematic digitisation and online accessibility of cultural materials: Copyrighted works of any kind may result orphan Among those, documents of highest historical and cultural importance: Audiovisual Build heritage Newspaper articles Photographs ……

5. Need for a European policy towards orphan works Unlike Canada or USA, most European countries are not currently trying to effectively address the problem. Italy, for instance, isnt moving steps towards its solution of the problem A common European framework would stimulate the solution of the problems and result in a harmonised approach to the issues involved Exploitation of works and online publication cross borders EuDL shall launch massive digitisation in cooperation with MS cultural institutions, and therefore needs to rely on a clear and stable legal framework

6. Need for common European clearance mechanisms A European clearance framework mechanism should: Include general principles and guidance Leave freedom of implementation (customizable at national level) The framework mechanism would result helpful if: Clear: Definition of orphan work, definition of criteria to be met in the search of the rights-holders Simple: Its application should result possible and secure for cultural institutions, without the need for massive legal assistance Effective and practical Flexible Respectful for copyright holders, whose paternity of a work should be recognisable at any time. Commercially available works dont need to be included Compatible with any measure implemented by any EU Member States

7. The HLEGDL – Copyright sub-group report Principles and remarks by the Copyright sub-group are of the highest importance. Particularly: Cultural institutions need legal certainty in their activities The notion and conditions of a thorough diligent search is crucial, and has to be elaborated in detail This elaboration should build upon current European practices (report mentions INA, BL, Deutsches Filminstitut; further investigation may find out other practices) The solution should be flexible and take into account the various categories of works

8. The HLEGDL – Csg report: Need for accompanying solutions Recommendations by Copyright sub-group should be endorsed by EC and MS governments: - To foster inclusion of rights metadata in every digital object, in order to prevent exponential growth of orphan works number - Awaken cultural organisation to enhancement of contractual practices, especially for those materials implying a high number of rightholders (such as audiovisuals) - Set up dedicated databases for information on orphan works

9. Conclusions However, the conclusion: Best practice or guidelines specific to particular categories of works can be devised by stakeholders in different fields, but legislative measures to define minimum steps or information sources should NOT be introduced suggests that a soft approach at EU level is taken, e.g. in the form of a Recommendation, which would result effective with respect to: The principle that cultural institutions need legal certainty The need to guarantee that what is legal in a EU country is legal in every EU member state The need that the EuDL is able to publish and make available at the same conditions orphan works provided by all member states

10. Conclusions Suggestions: It would be desirable to take into account a model of collective license for the purposes of the cultural institutions It would be useful to launch a survey to find out which measures are currently in force in EU Member States and which practices are followed by the cultural institutions where national frameworks are missing Once a first set of measures is drafted, it could be submitted to Member States trough a questionnaire, to ask for their endorsement/opinion A public register of works declared orphan should be foreseen. It may record which works have already been digitised and by which institution