Internal:Public Policy/Orphan works/Notes

2006 Report on Orphan Works

• notes will go here

Wikimedia Deutschland statement on orphan works

Source: WMDE Statement on Orphan Works, Berlin, August 10, 2012

This statement was in response to a proposal, but the proposal was not really summarized. Notes and comments by Econterms (talk):

• orphan works in their definition have been "handed over to an organization" -- so there's some difference from our definition
• Regarding "diligent search" (the same term used in the U.S.): "It would . . . be desirable to specify the sources that are to be consulted in such a way as to create a specific, conclusive list. This would help to keep search costs to a minimum and would create the necessary legal certainty." (I'm inclined to agree)
• "It is also important that all the listed sources are, without exception, freely accessible within the meaning of the 8 Principles of Open Government Data (http://www.opengovdata.org/home/8principles). This is the only way to ensure the availability of low-cost, professional search services and to encourage the development of appropriate business models." (agreed)
• "It is . . . crucial to establish open standards for the catalog and thus create the conditions necessary to simplify the development of appropriate business models and to boost competition within the digitization market." -- note here the idea that the use of orphan works is oriented toward business/competitive use ; not my focus
• "It is also very much in the interests of publishing houses and collecting societies that their catalogs are included in the search. If they are, it will be possible to identify the rightholders of certain works and to conclude contracts on the digital use of those works."
• "Wikimedia Deutschland e.V. believes that it is crucial that commercial partners are involved in searching for rightholders and in preparing works and making them available so that the necessary resources for the comprehensive projects exist. . . [and] the public sector struggles to handle large-scale digitization projects."
• ". . . governments need to systematically rule out the “free-rider” problem. This refers to the danger that rightholders might wait until their work has been digitized and possibly “upgraded” (e.g. restored) before claiming back their rights and using the works themselves. To address this issue, countries need a regulation that would require rightholders to reimburse the cost of digitizing a work if they use it for commercial gain after it has been digitized."
• "The current copyright situation means that much of the cultural material of the 20th century cannot be made publically accessible. This is not in the interests of users or rightholders. We therefore need a regulation that allows all those interested in doing so to make works accessible in a legally certain way that does not involve incalculable economic risks."
• "we fear that the proposed regulation will not provide an adequate solution to the problem of orphan works, particularly as it is limited to only a few privileged players. . . it is unclear why the group of privileged institutions tasked with digitizing orphan works and making them publically accessible remains limited to such a small number." (this refers to aspects of a solution---designated organizations doing the digitizing---that does not seem to come up in the U.S. proposals)
• "the catalog of provisions (Article 1(2) a-c) does not include photographs unless they have been published in books, magazines or journals. It can be said that the huge number of unpublished or uncataloged photographs for which the copyright and context of their origin can no longer, or only with great difficulty, be ascertained forms the main supply of orphan works. In the context of providing images for a free online encyclopedia such as Wikipedia, this material is an invaluable source for illustrating entries on topics like contemporary history. During the consultation process on the proposal for the directive, the interests of commercial photo agencies were apparently given priority over those of the general public. This is a major failing of the proposal." (the U.S. proposals do not seem to face this problem)
• "the proposal for the directive still does not provide a genuine incentive for mass digitization. The text does not specify either the time period or the exact process involved in a “diligent search”. However, the search methods and parameters to be used must be defined in order to help prevent a serious underuse of cultural works in the future."
• "it would be a good idea to encourage rightholders to make these works available under a free license. . . the ShareAlike clause contained in certain Creative Commons licenses can prevent “free riders” from acquiring works for their exclusive use."