“Digitisation is an act of reproduction subject to the authorisation of the copyright holder.
“On the basis of Article 5(2)(c) of the Directive 2 001/29, exceptions have been introduced in favour of libraries and archives that allow these institutions to reproduce works without prior consent of the rightsholders, mainly for preservation purposes. These exceptions do not cover and should not be extended to cover reproductions on a mass scale, which would clearly conflict with the normal exploitation of works and prejudice the legitimate interests of the copyrightholders, and would thus not pass the three step test of the Berne Convention and Article 5.5 of the Directive200/l29 (p. 2)
“It is...essential that co-operative projects also ensure that the activities carried out do not interfere with the commercial interests and the potential development of the rightsholders' own business models. Digitisation and/or the making available of works must not undermine the right of the creators or the commercial sustainability of the publishing industry. (p.3)
“From a legal as well as an economic point of view, orphan works cannot be neglected. A pragmatic and proportionate solution might be for national copyright legislation to establish a basis for licensing mechanisms which provide that anyone who seeks permission to make a copyright use of a work and cannot locate the rightsholder could petition and/or get permission from an entity to digitise and make the material available from an entity established for the purpose of providing such clearance/payments. Such solutions have already been established in some countries, both in and outside Europe, for the library as well as other sectors. On the basis of specific requirements, a licence could be granted for the proposed use on specifically set terms. The entity would hold the collected fees in trust for the rightsholder to claim. This solution could be established without the introduction of a new exception to the exclusive rights. (p.4)
“The main challenges posed by large scale digitisation of copyright works are practical ones of how licensing schemes can be organised and administered and not a lack of willingness on the part of the rightsholders to co-operate. The existence of orphan works and ascertaining whether works are still in copyright are among the practical problems to be overcome. In order to digitise works in copyright, permission is needed from the rightsholders concerned.” (p.5)
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-- From The Illustrators’ Partnership of America
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