It is time to kill Directive 2012/28/EU

Tuesday, May 26, 2020

So for some reason a request from someone in an unnamed EU canditate country to review amendments to their copyright law implementing the 2014 EU Orphan Works Directive landed in my inbox. It is a genuine request from an undoubtably well meaning person, but after calculating the likely impact of the OW directive, i just cant bring myself to do this:

Since its entry into force in 2014 the cultural heritage institutions in the 28 (former1) member states of the EU have identified a grand total of 12.847 orphan works and registered them in the EUIPO database. That is 0,000025 Orphan works per inhabitant of the EU28. If we take population as a proxy for the capacity to identify orphan works then this would suggest that the 4 western Balkan candidate countries will identify a mere 305 oprhan works in the five and a half years after having implemented the directive (ranging from 16 works in Montenegro to 177 in Serbia).

It is pretty cruel and shameful that we make accession countries implement failed legislation that will do them (or anyone else) no good whatsoever as a condition for joining the EU. It is one thing to keep failed legislation on the books because no-one has the guts to publicly admit to its failure2, but it is another thing to subject ressource-strapped countries to implement this legislation just because it exists. Someone should take note of this and get rid of the directive before it wastes even more ressources without doing any good.

  1. Intrestingly 47% (6.103) of all EU Oprhan works have been identified by institutions from the UK, which makes you wonder what will happen to them once Brexit has taken full effect. Will the EUIPO have to remove them from its database? ↩︎

  2. Case in point: according to the review clause in Article 10 of the directive the Commission should have submitted a review on the application of the directive by the 29 of October 2015. The fact that no such report has materialised almost 5 years after that date probably says more about the effectiveness of the directive than any report written by a commission official could ever do. ↩︎