EU Parliament approves directive on orphan works
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Deutsch: EU-Parlament verabschiedet Richtlinie über verwaiste Werke
On 13 September 2012, the EU Parliament approved the draft legislation on orphan works proposed in 2011, completed by the EU Parliament and Council compromise in June 2012.
The European Commission issued an Impact Assessment in 2011 accompanying the proposal for a directive on certain permitted used of orphan works, considering there was an urgent need of a legislative initiative on orphan works, as a result of the situation created by the US Google Books Settlement (in its original formulation orphan works were to be automatically included in the scope of the Google Books Settlement), the need to obtain prior copyright permissions for the use of orphan works in Europe and the risk of a knowledge gap in case orphan works could not become part of European Digital Library projects.
The Commission also considered a key action of the Digital Agenda for Europe was the creation of a legal framework to facilitate the digitisation and dissemination of orphan works (works for which no author is identified or located). The proposed directive was intended to make it "safer and easier for public institutions such as museums and libraries to search for and use orphan works (...)."
The directive defines what works that can be considered orphan works and it stipulates that the public institutions would be required to carry out a prior “diligent search”, in terms with the proposed directive requirements, in the Member State where the work was first published. When the diligent search establishes the orphan status of a work, it would be considered an orphan work all over the EU. Thus, orphan works can be made available online for cultural and educational purposes without prior authorisation, unless (or until) the owner of the work puts an end to such status.
Following certain concerns and criticism, in June 2012, the draft proposal was completed with two points which established that in case the right holder showed up, he would be entitled to claim compensation for the use of his own work and that public institutions should be allowed to generate some revenue from the use of an orphan work to be used to pay for the search and the digitisation process.
The approved text by the European Parliament also includes some other additions such as that the diligent search will not be necessary for each work but "in good faith" and "prior to the use of the work."
A new article was also added - the new Directive “shall be without prejudice to the Member States’ arrangements concerning mass-scale digitisation of works, such as those relating to out-of-commerce works."
Although considered a good idea, the proposed directive does not impress everybody. MEP Christian Engström, of the Swedish Pirate Party, believes the directive is not bold enough and “is not going to help to make the European common cultural heritage available the way it is drafted so I would urge everyone to reconsider because at the moment it simply isn't useful.” Another difficulty is that when dealing with musical works, a cultural heritage institution will have to consider the future rules that will result from the proposed directive on collective rights management and multi-territorial licensing of rights in musical works for online uses.
Commission's Vice-President Neelie Kroes has recently pointed out that although the proposals on orphan works, as well as the proposal on collective rights management, were good steps in the way to improve EU copyright, there were also other problems beyond licensing or orphan works and that "we need to focus also on substantive copyright reform."
Orphan works directive approved by EU Parliament (14.09.2012)
Are European orphans about to be freed? (21.09.2012)
Finding a good home for orphan works online (12.09.2012)
"Orphan" works: informal deal done between MEPs and Council (6.06.2012)
European Parliament legislative resolution of 13 September 2012 on the
proposal for a directive of the European Parliament and of the Council
on certain permitted uses of orphan works (COM(2011)0289 – C7-0138/2011
– 2011/0136(COD) (13.09.2012)