SCCR27: Library and Archive joint statement on orphan works

Mr. Ben White (LIBER), on behalf of library and archive organisations at SCCR 27:

Thank you Mr. Chairman.

I am speaking on behalf of all the library and archive NGOs on the issue of orphan works and out of commerce works.

Libraries have embarked upon digitisation projects of public domain items in their collections since the 1990s.

However finding legal mechanisms to digitise post 1874 published analogue materials that are still in-copyright has been very challenging indeed. 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 digitised due to the significant copyright barriers that exist. This problem has been called the “black hole of the twentieth century” .

Why must we find a legal solution to this black hole of the twentieth century?

The cultural, educational and scientific benefits of digitising out of commerce works and oprhan works we believe will be enormous, and engender further innovation and creativity in turn. The goal of copyright law itself of course.

Why is this a cross-border issue?

Collections in research libraries and archives are multinational in origin, and multinational in interest. It easy to understand why historical collections from Belgium would be of interest in the Congo, collections from Britain and France in Africa, India, and the Middle East, collections from Portugal in Brazil, and collections from Spain in 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 lacks an international dimension, and ones that are better addressed by the introduction of exceptions at a national level.

The Library and archive NGOs  do not share that view.

Indeed, we note that, just three years ago, the European Commission conducted an Impact Assessment on possible policy solutions to the orphan works phenomenon. The solutions under consideration included: (i) specific individual licences; (ii) extended collective licensing; (iii) state granted licensing; (iv) the mutual recognition of national solutions; and (v) a mandatory exception to apply across the European Union.

Europe has opted for a pan-European solution; a mandatory exception to copyright as the most appropriate and efficient solution in terms of: (i) the operation of the internal market; (ii) redressing the international knowledge gap; (iii) reducing operating costs and risks for libraries and archives; (iv) delivering best access to collections for researchers and consumers; and (v) as the solution promoting the greatest cultural diversity across all 27 member states.

The EU commission facilitated memorandum of understanding for the mass digitisation of out of commerce works, similarly has a cross border  principle at its heart. That is to say the MOU envisages a cross border legal effect to protect libraries who digitise their out of commerce collections in good faith being subjected to litigation in another country.

As highlighted already,  the collections that sit in libraries and archives of the former colonial powers, will have real and direct meaning and interest for ex-colonies. To put another way many countries histories sit, in part, in collections far away in another part of the world.

Mass digitisation will help libraries and archives provide post colonial nation states with access to important documents relating to their own history.

Quite simply a system of legal silos of national limitations and exceptions cannot protect a library or archive from legal action in another country. As the European Union has realised in the case of orphan works directive  the only way to facilitate large scale digitisation by archives and libraries is to ensure copyright law has a cross border effect.

In the modern world of the internet jurisdictional silos around limitations and exceptions must start to talk to each other.

Given that twentieth century history did not take place in national silos, the library and archive sector believes that 21st century copyright laws should not either.

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