Seminar of the European Commission - 14 September 2007
“EUROPEAN DIGITAL LIBRARIES INITIATIVE: THE STAKEHOLDERS’ PERSPECTIVES”
EFJ’s address on orphan works and due diligence guidelines for text-based material
- The European Federation of Journalists is Europe’s largest organization of journalists, representing about 260,000 journalists in over thirty countries. It defends press freedom and social justice through strong, free and independent trade unions of journalists and calls for journalists and photographers to be recognised as authors of the works they create, to be able to control further use of their works and to be able to negotiate equitable remuneration for these uses.
- The EFJ would like to thank the European Commission for its invitation to this panel. It also would like to congratulate the Copyright Subgroup for its excellent work.
- This input is limited to the journalistic field, whose characteristics are different from the ones of book publishing. Therefore there can also be different solutions to the problem of orphan works.
- In the journalistic field, the orphan works’ problem is particularly acute for photographs. However orphan works can also be found in relation to text-based material. Indeed, it is not so rare that an article only bears the initials of its author, or no signature at all. The profusion of short-sized material can also make it more difficult to locate rightholders for this kind of works. Collective management facilitates the identification of works and rightholders but, as far as journalistic works are concerned, collective management it is not equally spread in the various EU Member States.
- It is clearly in our interest to find a way to help cultural institutions use journalistic orphan works in a lawful way. For this purpose, the EFJ would favor a system of license issued against payment. The license would be issued by a collective management organization who would also administer the remuneration fund.
- The EFJ would like to draw attention to the fact that the issue of diligent search cannot be separated from the method adopted for right clearance. As mentioned in the Copyright Subgroup Report (p.9), the criteria for proof of whether reasonable search has been performed depend on the method that will be chosen for right clearances. In cases where a public authority or collective management organization issues a license, the proof is evaluated by the authority, prior use. In cases where a limited liability is introduced, full legal certainty is achieved only when a court examines the case, after use.
A licensing system will better ensure that the search was thoroughly performed in good faith than a system of limited liability. This adds to other arguments against the system of limited liability, like the prohibitive costs of litigation for authors who whish to enforce their rights.
- The EFJ agrees with the Copyright subgroup report that, taking into account rapidly changing information sources and search techniques, the criteria for diligence search should be established in guidelines easy to review rather than in legislative measures.
- The EFJ is willing to participate in the creation “due diligence” guidelines. However, the EFJ has been offered to create such guidelines for text-based material only. The EFJ does not think that a distinction text-based material/images is necessary relevant. Whereas the problem encountered for text-based material in the journalistic field will be different from the problems encountered for text-based material in book publishing, similar difficulties can exist to track down photographs and articles published in a newspaper or in a magazine. For instance, rightholders can be the same for these two types of material.
Besides, as an organization representing the interests of all journalists (print media / audiovisual media), the EFJ would also be interested in giving its input for the elaboration of guidelines in the audiovisual field.
- In the journalistic field, rights are mainly controlled by 3 categories of rightholders: authors, publishers and collecting societies. One particularity is that journalists often retain control over the use their works to ensure that ethical standards are respected. Therefore diligent searches for the use of journalistic works should involve serious attempts to identify and locate rightholders within these three categories. It should not be assumed that the rights are only held by the publisher.
- Collecting societies have a key role to play for the search. In many countries, collecting societies hold many data on rightholders and help users to identify rightholders. In the UK, The National Union of Journalists (NUJ) is in discussions with the author-led collecting societies ALCS and DACS about collaboration on setting up a “one-stop inquiry point” to determine who holds rights in written and visual works.
- There is a need to avoid the duplication of efforts. This could be done through networks enhancing cooperation between the various collecting societies. The EFJ also favors the creation of a database publicizing information on ownership of works (for instance on the internet).
European Federation of Journalists
Brussels, 14 September 2007