European Libraries And Copyright Owners Reach Understanding On Out-Of-Commerce Works

Brent Randall is a JD candidate at the University of Ottawa.

The European Comission recently facilitated the signing of a Memorandum of Understanding (MOU) between European libraries, publishers, authors and their collecting societies.  The MOU sets out key principles that allow cultural institutions in Europe, such as libraries, an easier way to digitizing out-of-commerce books and other publications for use in their collections.

This MOU is meant to be a complement to a previous proposal that the European Commission submitted regarding a similar usage of orphan works (for IP Osgoode’s coverage, click here).  There are a couple key differences between the two situations.  First, and more obviously, orphan works are different from out-of-commerce works.  As the European Commission states, the copyright owners of out-of-commerce works are still known and can be located.  The problem is that their works have either fallen out of print, or are no longer sold through traditional means.  Orphan works may still be in print or sold traditionally, but their copyright owners are not known, or cannot be found.

Due to the key difference between out-of-commerce works and orphan works, the means for dealing with such copyright issues also needs to be different.  This is why the proposal regarding orphan works was legislative, in order to make up for the deficiency of not having access to the copyright holder.  Legislation could therefore allow consistency and predictability for those wondering what the copyright implications may be when using orphan works. The MOU for out-of-commerce works is not a legal measure, as the copyright holders are available, and instead it is a way to bring together the interested parties so they can reach an agreement to allow the libraries use of their copyright to ensure legal digitization.

Both the orphan works proposal and out-of-commerce proposals are aimed at the same goal, however, which is to “further the development of digital libraries in Europeand provide the widest possible access to [its] cultural heritage.”  The European Commission has recognized that e-books and digital publishing has seen significant increases, as sales and downloads went from 2% to 11% of all digital sales from 2009 to 2010.

This MOU, along with the orphan works proposal, are two illustrations of how the European Commission is working toward what it calls a “single market for intellectual property rights”.  When it proposed the Single Market Act in April 2011, the Commission stated that it intended to propose “12 key actions to boost European competitiveness and to unlock economic growth and jobs…”  One of those key actions was the development of a “digital single market.”  The goal is to streamline as much as possible in the European Union, so that everything is seamlessly accessible – including the availability of works of cultural significance.

This new MOU is a major step forward for Europe in the digitization of works, which is becoming more and more convenient and preferable for people.  Instead of trying to track down a single copy of a rare book, several readers could pull up the same copy on their computer, which would hopefully lead to more widespread cultural enrichment.  A concern that may develop over time however, is that these principles are just that.  They are not law, or even contract.  The parties have agreed to the MOU, but it is not fully binding or certain.  There is room for interpretation and alteration of the terms depending on what the parties want.  This means that while cultural institutions now have a better way for dealing with copyright concerns on their way to digitizing books, the parties may still want something slightly more certain and binding at some point in the future.