Broad access to our cultural legacy or “better dead than read”: A new EU Directive that is now being discussed in the European Parliament will decide whether to rescue millions of forgotten “orphan works that constitute an important part of our historic heritage.
It´s hard to imagine that some people would snugly sit back while a big part of our unaccessible historic heritage is lost or, even worse, actively fight against the only viable means of protecting it: digital archiving.
During the 1950´s some fervent coldwarriors insisted that it was much better to be “dead than red”. Today, on a very different level, a similar philosophy is being put forward by copyright fundamentalists, a few EU member states like France and by some lobbyist-cum-civil servants at the European Commission, in particular at the Directorate General of Internal Market headed by Michel Barnier. They would prefer that millions of books, songs, films, illustrations and photographs were dead, lost for ever, than risk any serious flexibilization or exception to EU copyright laws that would facilitate mass digitization and, thus, social access to “orphan works”, out of circulation works whose authors are unknown or not found.
These hard-liners expound the deeply flawed strategy of “cultural scarcity”: the fewer works accessible to the public, the better for the the “cultural industry” . Instead of massively liberating these forgotten works for the sake of knowledge and innovation, these peculiar “defenders of culture” would prefer to apply “passive euthanasia” by just letting the paper flake, the celluloid disintegrate and the sound recordings fade. Instead of legally allowing mass digitization through easy author search mechanisms, balanced public-private partnerships and clear limits on possible claims and renumeration, the copyright lobby and their political mouthpieces are erecting tall barricades against the advance of any rational mass recuperation of orphan works.
The battle lines are drawn in the European Parliament that shall be making some very clear choices over the next few weeks. On one side stands the broad public interest of libraries, consumers, researchers, educators and new innovative cultural businesses. On the other side the negative agenda of “the worse, the better ” coalition of traditional rights holders, some collecting societies and a few self-assigned ideologues of ” the moral rights of artists”.
It is more urgent than ever that the point of view of broad public interest be heard loud and clear in Brussels. Hundreds of amendments have been tabled and will be considered next week by the Rapportuer De Geringer in the European Parliament´s Judicial Committee.
Below is a summary of some of the clear options that MEPs shall decide on in the coming weeks (more information on the concrete amendments is forthcoming):
1. Liberating millions of orphan works for mass digitization or just individual access to concrete works.
2. Quick and easy “diligent search” or expensive, tortuous and long search of works fractioned by different authors, illustrators or designers.
3. Wide orphan works access to audio, photographs, journalism and film or a narrow scope limited to books.
4. Clear limits and thresholds to liability for fair renumeration or open-ended, expensive legal battles that inhibit use of orphan works. “fair” and “related to use”
5. EU Legislation based on existing frameworks for exceptions and limitations to copyright or a new restrictive, regressive interpretation of the legal scope of EU copyright law.
6. Opening up the potential of public-private partnerships for mass digitization of orphan works with legal flexibility or a rigid moulding of legislation for sole public funding of orphan works digitization.
7. Liberating orphan works for a wide range of uses for cultural access, innovation and artistic creation or narrowly defining the uses of orphan works only for “public service” and cultural heritage institutions.
The voice of public interest and access to knowledge must be heard!
David Hammerstein, TACD