Will Europe’s Three Million Orphan Books Ever Be Digitized?

In Europe by Edward Nawotka

By Edward Nawotka

• The EC has determined there are three million orphan books in Europe and the cost of clearing digital rights is costly, often far higher than digitization itself.

• One solution might be Europe-wide collective licensing agreements modeled on those currently in use in Scandinavia.

BRUSSELS: The issue of orphan books –- those books with no clear copyright holder –- continues to vex digitization efforts across the globe. In Europe, it’s a particularly contentious issue, so much so that the European Commission vowed to look into the issue beginning last year. Among its first steps has been to determine the size of the problem and last month it issued a report estimating there are some three million orphan books among member states.

For starters, the report acknowledges that “there are considerable differences in the national copyright legislations” and “there are wide discrepancies in the extent to which exceptions and limitations allowed” under EU law. Furthermore, it noted the fact that European copyright legislation does not provide a common definition of an orphan work, making the task of accounting for the number of works all the more difficult.

The EC report surveyed 22 cultural or “memory” institutions, including national libraries, film archives and universities in the UK, France, Norway, Germany, the Netherlands, Austria, Hungary, and Poland, though the figure of three million was actually “extrapolated” from the actual figure of 600,000 orphan works in the UK as calculated by the British legal deposit library at the Bodleian Library in Oxford University.

Among the key findings of the report, which also considers orphan films, photographs, newspapers and music, was that the biggest obstacle to digitization is not the cost of the digitization process itself, but that of clearing rights and the immense number of man hours involved. The report found, for example, one UK project spent £70,000 to clear the rights to digitize 1,400 posters from the 1980’s, while a Dutch project to digitize 500,000 photographs and 5,000 films budgeted €625 000 just to pay for rights.

What’s more, the report estimates “the overall number of successfully cleared works at only 5-25% per digitization project.” (Still, that number may be significantly higher for books, which were generally deemed to be easier to track than materials of low potential commercial value, such as old newspapers and photographs.)

On the solution side of the problem, the report looked at the implementation of “collective agreements,” such as those that exist in Scandinavia. The National Library of Norway, for example, in April 2009 signed a licensing agreement for their digitization project, which concerns the online accessibility of 50,000 copyright protected works published in Norway, including translated literature, ranging from from the periods 1890-1899 and 1990-1999.

Under what is known as Norway’s “Bookshelf,” a yearly amount of 0.56 NOK is paid per page that is made digitally accessible to the public. “A book has on average 185 pages, making the total remuneration paid 103 Norwegian crowns i.e. around 13 euros per book,” says the report. “This cost covers also the use of works that might be orphan, likely to exist among works from 1890-1899. Although the agreement provides for online accessibility of copyright protected works, a significant downside to it is that access may only be provided from Norwegian IP-addresses. Moreover, the contract does not allow for downloading or printing the material until the copyright-protected period has expired.”

Institutions in some countries are calling for wider legislation. For example, in the Netherlands, The National Library “has indicated clearly that a title by title search is not feasible for large scale digitization projects which normally include thousands of right holders to possibly hundreds of thousands works,” says the report.

“This fact is evident when looking at the efforts of these institutions, even within smaller digitization projects. The library states that although it has concluded collective agreements with right holders, the use of potential orphan works by the library remains infringing, because this collective solution lacks a legal basis. The library advocates that the EU should introduce a Europe-wide, mandatory legal solution for both orphan works and mass-scale digitization, which does not require a diligent search on a per-work basis.”

But the report also notes that though collective licensing agreements do exist in some countries, they are “not available to all types of cultural institutions, nor to all types of uses.”

The fact is that clearing rights — immensely complicated, difficult, and expensive — and not technology, remains the biggest obstacle to digitizing Europe’s libraries and making them available to a wider public.

Europe needs — if not demands — clear leadership on the issue from Brussels. Sizing up the problem is a solid first step in the right direction, but they need to be more fleet, rather than flat, footed in the future if they want to find a way of working with the likes of Google and other tech giants who will, forge on into the digital future them and leave behind treasures that can’t have their rights cleared to molder in dusty archives and library basements in all likelihood never to be seen again.

READ: The full report here.

DISCUSS: Should the EC legislate clearances for digital book rights?

About the Author

Edward Nawotka

A widely published critic and essayist, Edward Nawotka serves as a speaker, educator and consultant for institutions and businesses involved in the global publishing and content industries. He was also editor-in-chief of Publishing Perspectives since the launch of the publication in 2009 until January 2016.