EU Parliament approves directive on orphan works

By EDRi · September 26, 2012

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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)