In an unexpected turn of events, one of the key committees in the European Parliament voted recently to weaken a reform of the copyright monopoly for allowing re-publication and access to orphan works, pieces of our cultural heritage where no copyright monopoly holder can be located.

When a work has gone orphan, it means that it is effectively lost until the copyright monopoly expires, 70 years after the creator’s death. You can only hope that somebody has kept a copy illegally and copied it across new forms of storage media as they go in and out of fashion as the decades come and go, or it will be lost forever.

The vote in committee on March 1 was supposed to end that (or, more technically, recommend a course of ending that to the European Parliament as a whole). However, the copyright industry lobby won key points in the voting procedure with 14 votes against reform and 12 in favor of it, according to the just-published protocol. This is according to a fresh report from our Brussels office – I cannot yet find the protocol on the EU’s web pages (which are notoriously disorganized; it may actually be published).

There’s a problem with this. There are 24 seats in the committee, and one group (non-inscrits) was absent, lacking deputies to fill that person’s vote. So, there should have been 23 votes at the most. But we just counted 12 votes for reform and 14 against. That’s 26.

Yes, your reactions are correct here – that means that voter turnout on this copyright reform issue was 113%. Also, if there were 12 reform-friendly people with actual voting rights, then there would necessarily have been 11 against – causing reform to prevail, and the copyright monopoly to be substantially weakened in the European Union in favor of preserving our cultural heritage.

This rather embarrassing issue was pointed out to the committee, the fact that there were three votes too many, and that these three votes determined the outcome. When this was done, along with formally requesting a re-vote, that re-vote on the points in question was denied.

“What can I say? There is a lot of room for improvement when it comes to democracy in the European Union”, says Christian Engström, Member of the European Parliament for the Swedish Pirate Party and member of the committee in question.

The final kicker here is that the 113-per-cent voter turnout happened in the Legal Affairs committee (JURI), which has the responsibility of safeguarding the integrity and trustworthiness of the legal framework as a whole in Europe. MEP Engström’s assistant, Henrik Alexandersson, called the phenomenon “a temporary form of democratic surplus” in a scathing blog post.

(Finally, in the interest of full disclosure and context, it shall be said that there’s no clear picture yet on the overall state of orphan works reform. This was about amendments to that reform in the JURI committee, where these 14-against-12 votes went in the wrong direction: against a good and useful reform. The proposal as a whole is still going to the European Parliament floor for a vote – but in what shape or form remains to be seen.)

THIS WAS NOT THE FINAL 22-0 VOTE; SEE BELOW FOR DOX ON 14-12 VOTE

Just to point this out clearly, some people have linked the JURI protocol and said that these numbers are all wrong, that the dossier was accepted by a 22-0 vote with one abstention. This article does not refer to that vote, but to an amendment vote leading up to the final version. User JPMH on Slashdot found the 12-to-14 vote on video and was thus able to confirm the story, see Update 2 below.

UPDATED: The article originally mentioned the committee meeting as having taken place “last week”; this was due to a mistranslation from the source. It appears to have been March 1, see discussion in comments 8 to 8.2.

UPDATE 2, VIDEO DOCUMENTATION: Many have been asking for proof or documentation beyond eyewitnesses, and the swarm delivers, here in the shape of user JPMH on Slashdot. JPMH writes, “The agenda item starts at 10:27 [in the linked video], and the voting runs from 10:31 to 10:51. The amendment in question appears to be “Compromise 20″, voted on at 10:39, which is indeed rejected by 12 votes to 14.”

UPDATE 3: Glyn Moody points at the complaint from the Orphan Works rapporteur, Lidia Geringer de Oedenberg, about this. There was not only the 12-to-14 vote on Compromise 20 as mentioned, but also a 13-to-12 vote on amendment 71 and a 13-to-11 vote (still with 23 maximum possible votes) on amendment 32. At least three cases of “temporary democratic surplus”, for which the rapporteur requests clarification. Also, the rapporteur refers to these amendments as crucial.