0.5 Managing rights  (Page 10/11)

Another country that implements a licensing regime for the use of orphan works is Japan, which operates a compulsory licensing system for orphan works codified in Section 8, Article 67 of its copyright laws. Japan requires that a prospective user perform “due diligence” in attempting to locate the copyright holder, but does not explain what qualifies as “due diligence.” Like Canada, Japan requires that the work have been previously published, and allows the government to grant a license to the user upon payment of a royalty. Royalties are placed in a fund from which copyright holders may receive compensation if they later discover and object to the use of their works. Notably, the holder may petition the government for an increase in the royalty rate within three months of the issuance of the license if she learns of the use and believes the initial rate to be unsatisfactory.

Other countries do not currently have statutory provisions dealing with orphan works, but may enact such provisions in the near future.  American legislation  dealing with orphan works is currently being considered by the U.S. Congress. The proposal would limit remedies in civil suits over the use of copyrighted works, as long as: (1) the user had made reasonable, but unsuccessful, efforts to locate and identify the holder, and (2) the work was attributed to the holder (if identified but not located). The proposal has been  criticized by many scholars  and is opposed by representatives of photographers. Partly as a result, it is unlikely to be adopted soon.

In April 2008, the European Commission’s High Level Expert Group published a  report on Digital Preservation, Orphan Works, and Out-of-Print Works , which recommended courses of action for member states of the European Union to establish licensing systems that would deal with the problem of orphan works. At the same time, numerous rights holders and representatives of libraries and archives signed a  Memorandum of Understanding on orphan works  which expressed the commitment of these organizations to facilitate and encourage the licensing of orphan works for certain purposes. The Memorandum of Understanding and the European Commission’s report are not law and are therefore not binding.

Librarians in the majority of countries that currently lack a system for managing orphan works have a strong interest in collaborating with other stakeholders to create such a system. This is especially true of librarians who wish to initiate digitization projects for the preservation and distribution of older works in deteriorating, non-digital formats. Although the exceptions and limitations discussed in  Module 4  may permit libraries to undertake such digitization projects purely for preservation purposes, they typically do not permit the libraries to make the digitized works available to the public. For that, the libraries usually need licenses, which are impossible to obtain for orphan works. Finding a workable and fair solution is thus imperative. For a discussion of this issue, and the positions that various library organizations have already taken on it, see the  eIFL Handbook on Copyright and Related Issues for Libraries .