Event Report: Can Crowdsourcing Solve the Orphan Works Problem?

Crowdsourcing is one of the great innovations of the 21st century, but can it help address the issue of diligent search in the use of orphan works? The challenge of unlocking access to copyright works where the author is unknown has been a priority in the cultural agenda for some time. The issue of orphan works as an obstacle to the “productive and beneficial uses” of copyright works has been recognised as a policy challenge since at least 2006 when the US Copyright Office first made proposals for a legislative solution.

Since 2006, we have seen major legislative initiatives such as the EU Orphan Works Directive 2012 (Kat post here) and the UK IPO orphan works licensing scheme (Kat post here). However, despite guidance provided by the IPO, the “diligent search” requirement set out in the legislation has been identified by many as a major practical and financial hurdle. 

Seeking to address this, the EnDOW ("Enhancing access to 20th Century cultural heritage through Distributed Orphan Works Clearance") project was launched two years ago. The project aims to research the legal instruments of “diligent search” in the EU and create an online platform that allows crowdsourced diligent search processes in order to investigate the potential application and challenges of such a platform.

At the end of June, an international symposium held at the Centre for Intellectual Property, Policy and Management (CIPPM) at Bournemouth University brought EnDOW researchers together with copyright scholars from around the world. We hear more about the event from our friends at CIPPM:

Peter Jaszi talking orphans in America

"Crowdsourcing could be a solution to the challenge of diligent search for orphan works. This was the message from the EnDOW project, which launched its new platform at the symposium “New Approaches to the Orphan Works Problem”. Scholars from three continents came together to discuss solutions to the various roadblocks they have identified in their jurisdictions around the issues of orphan works.

Multiple perspectives, throughout the symposium, demonstrated that proving the orphan work status through diligent search (as requested, most notably, by the Orphan Works Directive 2012/28/EU) was exceedingly time-consuming and costly, especially for non-profit cultural institutions. 

However, one solution could be found in crowdsourcing efforts to perform diligent searches. As shown by 

Dr Kris Erickson, many cultural institutions already use volunteers for that purpose, and crowdsourcing expands on these existing practices. This effort poses certain practical difficulties, but innovative solutions to those difficulties as appearing, as highlighted by Prof Dan Hunter in his presentation of Blockchain technology as a way to facilitate diligent searches. The EnDOW platform, launched at the symposium in its Beta version by Maarten Zeinstra and the researchers of the EnDOW project, sets out to enable diligent searches in a streamlined and effective way.


Meanwhile, a review of the legislative efforts suggested that these attempts to deal with the problem are unconvincing. In the US, scepticism on these efforts came from Prof Peter Jaszi’s tale of repeated pushes for legal intervention being ground down by endless congressional negotiations and mismanagement. Paradoxically, the lack of orphan works legislation in the US favoured the proliferation of digitisation projects relying on the flexibility of fair use. By contrast, as shown by Prof Maurizio Borghi and Dr Marcella Favale, the over restrictive scheme introduced in EU Member States by the Orphan Works Directive has substantially failed to deliver its promises.

A particular problem was identified by Associate Prof Lillà Montagnani through the survey of 20 EU Member States’ diligent search standards: the process and the sources which cultural institutions need to go through to satisfy the standard of diligent search. Though many Member States used the same sources of the Directive, overall more than 1,700 different sources are listed when tallying these various Member States; Italy alone lists over 300. A particularly thorny problem was the fact that many of those sources could not be accessed freely, a limitation which hits non-profit archives the hardest.

A common solution – reversing the burden of proof so that works were assumed to be cleared until a rights holder came forward – was given its chance by the French authorities, as explained by Associate Prof Franck Macrez. Macrez showed that this chance was short-lived, as the ECJ struck down the French law on out-of-print books and put forward the rights of the creators as requiring prior consent and no formalities [see the IPKat here and here]. While a French-style solution may be revived within the proposed Directive on Copyright in the Digital Single Market, it remains to be seen whether the ECJ decision will have an impact on other national solutions of the orphan works problem.

Kris Erickson engaging a lively discussion

If solutions do not stem from legislative efforts, where should they come from?  One idea was relying on the public interest, putting forward the importance of archives – and more importantly their non-profit nature. As was shown by both Dr Claudy op Den Kamp and Leontien Bout for the EU and David Hansen in the US, archives simply rarely get sued or pressured by rights holders. Many archives end up uploading works after sometimes limited diligent search, and, in the EU, sometimes just enough to follow the bare minimum standards of sources laid out in the Directive. The US context is particularly well-suited for such an approach, as shown by Meredith Jacob who discussed how the fair use doctrine is fertile ground for archives interested in using works, bypassing the copyright headache altogether thanks to their non-commercial mission.

As explained by Kris Erickson, these institutions’ relative safety is precarious: re-emerging rights holders remain a major worry, blocking a large portion of 20th century works from being released to the public. Various initiatives have shown some progress in changing the way cultural institutions approach the problem, as shown by Victoria Stobo in relation to the Digitizing the Edwin Morgan Scrapbooks project, but legal certainty is the only way to completely alleviate worries.

Finally, an argument proposed over the course of the Symposium was that, if the problem of diligent search could not be avoided, making it as easy as possible was the way forward, through reducing the time and cost involved in the process. One aspect of that was highlighted by Annabelle Shaw was - empowering those working for the various cultural institutions through training and increased expertise, and inspiration from risk assessment frameworks and other proven tools to guide the process of diligent search."

See #endow on twitter for more photos and comments about the event and project. 

Keep up to date on the the EnDOW project here and other events going on at CIPPM here.

Photo credit: Maurizio Borghi