Breakthrough Gives EU Principles For Digitising Out-Of-Print Books

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Key European stakeholders have approved a “ground-breaking” set of principles for digitising and making publicly available out-of-print books and journals. The accord could serve as a template for dealing with the vexing problem of orphan works, those for whom the copyright owner cannot be found, according to International Federation of Reproduction Rights Organisations CEO Olav Stokkmo.

It is unclear, however, whether the approach will be attractive to the audiovisual sector, said European Publishers Council (EPC) Executive Director Angela Wade.

The memorandum of understanding (MoU) [pdf] is considered first-of-its-kind because it deals with out-of-commerce works, and enjoys the participation of all relevant stakeholders, Stokkmo said in an interview. It defines an out-of-commerce work as one which, in all its versions and manifestations, is no longer commercially available from customary channels, regardless of whether there are copies in libraries or second-hand bookshops. European library Europeana and its national counterparts want to digitise such content but cannot do so until common ground is found with rights holders, he said. Last November, the European Commission asked authors, publishers, the IFRRO and other interested parties to come up with agreed criteria for digitising and making available on Europeana out-of-commerce works, he said.

MoU signers are the IFRRO, Federation of European publishers, International Association of Scientific, Technical and Medical Publishers, EPC, European Visual Artists, European Writers’ Council, European Federation of Journalists, European Bureau of Library, Information and Documentation Associations, Association of European Research Libraries, European Library and Archives Organisations, Liber Scientific Libraries, and Conference of European National Librarians.

The agreement sets out three principles. First, agreements for digitising and making available out-of-commerce works contained in publicly accessibly cultural institutions, which are not for direct or indirect economic advantage, must be negotiated on a voluntary basis by all relevant players including authors and publishers. They must agree on what is to be digitised, including a publication cut-off date, and on the fact that those items are no longer in commerce. The latter determination must be made according to the practices of the country where the work was first published. Each agreement must define commercial or non-commercial uses and specify which are authorised.

Each contract must also stipulate the author’s right to claim authorship of the work, to acknowledge that authorship when known, and to object to any distortion, mutilation or other modification of her work.

Principle two limits the granting of licences for out-of-commerce content to collective management organisations in which a substantial number of authors and publishers affected by the MoU are members and represented in the key decision-making bodies. Each digital library project must be widely publicised so all stakeholders whose rights might be affected can decide whether or not to participate. Where a rights owner whose work was first published in a particular EU country has not transferred management of those rights to a collecting society, the collective management body which manages the same category of rights in the country of first publication will be presumed to manage the content. Rights holders have the right to opt out of and withdraw all or part of their works from any such collective licensing regime.

Principle three addresses cross-border access to digital libraries, providing, among other things, that if an agreement includes trans-border and/or commercial uses, the collective management organisation may limit its licence of works that are out-of-commerce to those of represented rights owners.

The parties were “united in their aim to find voluntary licensing solutions” that fully respect copyright, Wade said. In the case of books and learned journals, it was important that everyone agreed from the outset that rights holders should always have the first option to digitise and make available an out-of-commerce work as more works are commercialised to feed flourishing ebook services, she said.

A Partial Fix for Orphan Works?

The MoU will solve the problem of “orphan” works – those whose rights holders are unknown or untraceable – because it will allow such content to be included in collective licences, Stokkmo said. This does not mean that EU legislation on orphan works is not necessary, however, because stakeholders in some countries may not use the MoU, he said.

The initiative envisions the use of the EU-funded Accessible Registries of Rights Information and Orphan Works (ARROW) system to search for included and excluded works, Stokkmo said. A British Library study, Seeking New Landscapes: A rights clearance study in the context of mass digitisation of 140 books published between 1870 and 2010, found that more efficient clearance mechanisms and giving cultural institutions more legal certainty about their activities will ensure that valuable research materials don’t remain out of reach of most citizens, the library said on 15 September.

Among other findings, the study concluded that while it could take 1,000 years for one person to clear the rights of 500,000 books manually [corrected], using the ARROW system reduced the time to less than five minutes per title to upload the catalogue records and check the results. The analysis highlights the need for “innovative solutions in relation to mass digitisation projects,” the British Library said. The presence of a high percentage of orphan works (31 percent of the total sample) boosts the case for pan-EU legislation, it said.

The MoU principles are sector-specific and deal with a distinctive set of requirements, Wade said. “It remains to be seen whether the parties in the audiovisual field feel there is merit in this approach.”

The document “is a clear sign that, through dialogue and taking into account the specific needs of specific sectors, it is possible to reach negotiated solutions to surmount copyright issues in the digital era,” European Internal Market and Services Commissioner Michel Barnier said in a release.

The report is here.

The MoU is available here [pdf].

Dugie Standeford may be reached at

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