CEPIC Offers EC Industry Perspective on Orphan Works

Posted on 11/9/2009 by Julia Dudnik Stern | Printable Version | Comments (0)

The European Commission held hearings on orphan works during the last week of October. Sylvie Fodor of the umbrella group Coordination of European Picture Agencies discussed the challenges presented by the looming legislation to the image industry.

Fodor noted that the pressure for legislation that addresses orphan works comes from end users, and as such, “is most likely to be challenging, if not threatening, to copyright holders.” In all, the CEPIC representative identified three challenges.

The first challenge is the potential weakening of copyright. At the Oct. 26 EC hearing, Fodor said that new laws would enable the expedient completion of mass digitization projects—such as Europeana and Google Books—by abandoning basic copyright principles that have worked for over 200 years. “The Google Book Settlement is an outstanding illustration of this point.,” she continued. “In the name of efficiency, copyright rules are being totally sacrificed, with Google imposing an opt-out rather than opt-in solution onto authors. Previous disregard of copyright has enabled Google to scan 10 million books in only four years. If the settlement is agreed, Google will be authorized to continue in the same way: scanning books completely legally and under its own special conditions.”

Another challenge is the potential shift of revenues from content providers to users. Fodor said that orphan works would be competing with living authors’ materials, such as when a nonprofit uses an orphaned image to illustrate a Web site that generates revenues. Fodor pointed to the difficulty of classifying such cases as commercial or non-commercial image uses. She also noted what she called a double profit on the user’s end: “The user benefits twice from the exploitation of an orphaned work. He may both use and license it.”

Perhaps the biggest problem is the amount of new apparent orphans produced daily. “Due to poor crediting, billions of pictures are potentially orphaned—not because they are but because the name of the author is missing,” said Fodor. For image libraries, the main issue is the illegal creation of orphan works as a result of lacking image crediting and stripping of metadata. “These issues must be addressed in any future legislation to prevent more images becoming orphans,” Fodor explained.

Her presentation also stressed that there is a need for clarity regarding terminology—mainly of terms such as “orphan works,” “diligent search” and “commercial usage”—and what happens to revenues generated by commercial exploitation of orphan works.

In all, CEPIC objects to introducing a new copyright-law exception and advocates a clearing center approach instead. Fodor offered Canada’s copyright board, Hungary’s patent office or the collecting societies of France and Germany as successful approaches to handling orphan works-related issues. Clearing centers, said Fodor, would have the resources and independence to control both the rules of the process and the distribution of revenues.

Copyright © 2009 Julia Dudnik Stern. The above article may not be copied, reproduced, excerpted or distributed in any manner without written permission from the author. All requests should be submitted to Selling Stock at 10319 Westlake Drive, Suite 162, Bethesda, MD 20817, phone 301-461-7627, e-mail: wvz@fpcubgbf.pbz


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