Digital technologies allow unprecedented preservation and sharing of world-wide cultural heritage. Public and private players are increasingly entering the scene with mass digitisation projects that will make this possible. In Europe, legislative action has been taken to allow cultural institutions to include in their online collections copyright works whose owners are either unknown or non-locatable (“orphan works”). However, according to the Orphan Works Directive, cultural institutions must attempt to locate the owner of a work before using it. This is the so-called “diligent search” requirement. This paper provides an empirical analysis of the conditions under which a diligent search can feasibly be carried out. The United Kingdom, the Netherlands, and Italy, all of which have implemented the Orphan Works Directive, have been selected as case studies. For each jurisdiction, this analysis determines what the requirements for a diligent search to locate copyright holders are, what the authoritative sources and databases to be consulted are in practice and, most importantly, to what extent these are freely accessible online. In doing so, our analysis provides insights into the two main issues affecting cultural heritage institutions: (1) how much legal certainty does the implementation provide, and (2) what is the practical burden of a diligent search. The analysis reveals that the jurisdictions have given different meanings to the term “diligent”. While the UK’s extensive guidance makes it unlikely that a search would not be deemed diligent, the search burden is onerous. On the other hand, Italy and especially the Netherlands have a lighter search burden, but in the absence of clear, definite guidance, the likelihood of accidental infringement by failing to meet the diligence standard is greater. In addition, all three jurisdictions have so far failed to take the accessibility of the sources into account, making the searches even more onerous than the numbers suggest at first sight. Therefore, it will be difficult for cultural institutions to clear the rights for their collections while fully complying with the requirements of the legislation. This article concludes that legislative action, official guidelines, or jurisprudence are needed to establish a different legal value of sources for a diligent search, with various degrees of optionality depending on data relevance and accessibility.
This paper examines the implications for European music culture of the European Union’s (EU) Digital Single Market strategy. It focuses on the regulatory framework being created for the management of copyright policy, and in particular the role played by collective management organisations (CMOs or collecting societies). One of the many new opportunities created by digitalisation has been the music streaming services. These depend on consumers being able to access music wherever they are, but such a system runs counter to the management of rights on a national basis and through collecting organisations which act as monopolies within their own territories. The result has been ‘geo-blocking’. The EU has attempted to resolve this problem in a variety of ways, most recently in a Directive designed to reform the CMOs. In this paper, we document these various efforts, showing them to be motivated by a deep-seated and persisting belief in the capacity of ‘competition’ to resolve problems that, we argue, actually lie elsewhere – in copyright policy itself. The result is that the EU’s intervention fails to address its core concern and threatens the diversity of European music culture by rewarding those who are already commercially successful.
In the literature on copyright evolution, it has been argued that some degree of convergence has occurred over time. This means that the respective policies of different jurisdictions have become increasingly similar, not only in the substantive provisions themselves (the scope of protection) but also in how copyright is perceived (the copyright culture). Copyright culture in particular refers to the well-established, idealised models of author rights generally associated with civil law systems and common law copyright. Nonetheless, recent technological challenges have highlighted the significant differences that remain in how copyright responds to new challenges. This article examines the convergence of copyright policies in the US, UK, Germany and international level between 1880 and 2010. Rather than relying on a qualitative analysis, a quantitative approach is used to examine the evidence for convergence. It compares the laws as they are in force for each of the jurisdictions examined, to the two ideal types relied upon by the legal literature: author rights systems and common law copyright systems. Ideal types reflect the epitomised description of what an author rights and a common law system are, irrespective of whether these exist or have existed in such a form in the real world. These two polar opposites are used as external benchmarks against which the copyright policies are compared and the position of these policies on a spectrum which has author rights at one end and common law copyright at the other, is determined. By placing the case studies on a spectrum, their evolution relative to each other is clear and the existence of convergence and its extent can be analysed. The article concludes by clarifying the extent of convergence. The degree of convergence has been limited between the US, UK and international level, while Germany’s policies actually moved away from them. In addition, the commonly identified causal factors, such as technology and international agreements, only developed a limited impact in practice, explaining why the empirical evidence has failed to show the expected convergence.