Orphan works – Frequently asked questions

Brussels, 4 October 2012

1. What are orphan works and why is a direc­tive to deal with them needed?

Orphan works are works like books, news­pa­per or maga­zine arti­cles, or films that are still pro­tec­ted by copy­right but for which the copy­right hol­ders can­not be loca­ted in order to obtain copy­right per­mis­si­ons. Orphan works are found in the collec­tions held by European libra­ries and cul­tu­ral institutions.

The digi­ti­sa­tion and dis­se­mi­na­tion of orphan works pose a par­ti­cu­lar cul­tu­ral and eco­no­mic chal­lenge: the absence of a known right hol­der means that cul­tu­ral insti­tu­ti­ons are unable to obtain the requi­red aut­ho­ri­sa­tion, to digi­tise a book, for example. Orphan works rep­re­sent a sub­stan­tial part of the collec­tions of Europe’s cul­tu­ral insti­tu­ti­ons (e.g. the British Library esti­ma­tes that 40 per cent of its copy­righ­ted collec­tions – 150 mil­lion works in total - are orphan works).

That is why com­mon rules on how to deal with such works are nee­ded in order to pro­ceed with large-scale digi­ti­sa­tion pro­jects, such as the Commission’s Europeana portal.

As part of its Intellectual Property Rights (IPR) Strategy (see IP/11/630), the Commission adop­ted on 24 May 2011 a pro­po­sal to esta­blish com­mon rules on the digi­ti­sa­tion (the con­ver­sion of ana­lo­gue data, for example images, video, and text into digi­tal form) and online dis­play of so-called ‹orphan works›.

Following the tri­lo­gue agree­ment by the European Parliament and the Council on 6 June 2012 (see MEMO/12/421) and the for­mal appro­val by the European Parliament on 13 September 2012, the Directive has finally been adop­ted today by the Council. It will enter into force by the end of the year. Member States will then have two years to trans­pose the Directive at natio­nal level.

2. What orga­ni­sa­ti­ons will bene­fit from the Directive?

The new Directive applies to

  • publi­cly acces­si­ble libra­ries, edu­ca­tio­nal esta­blish­ments, museums,
  • archi­ves,
  • film or audio heri­tage institutions
  • public ser­vice broadcasters.

Provided that all the con­di­ti­ons set out in the Directive are ful­fil­led, these cul­tu­ral orga­ni­sa­ti­ons will be entit­led to digi­tise orphan works and make them publi­cly avail­able on-line in all Member States on the basis of an excep­tion to copy­right app­lica­ble in the whole EU.

3. What works are covered by the Directive?

The Directive applies to fol­lo­wing cate­go­ries of works first publis­hed in the EU who are still pro­tec­ted by copy­right but whose aut­hors or other right hol­ders can­not be any­more iden­ti­fied and located:

  • works in the print sec­tor (books, jour­nals, maga­zi­nes and newspapers)
  • cine­ma­to­gra­phic and audio-visual works.
  • pho­no­grams
  • works embed­ded or incor­po­ra­ted in other works or pho­no­grams (e.g. pic­tures in a book)

The Directive also applies to unpublis­hed works (such as let­ters, manu­scripts, etc) under cer­tain conditions.

4. What are the main ele­ments of the new Directive?

First, the direc­tive con­tains rules on how to iden­tify orphan works. It sta­tes that a cul­tu­ral orga­ni­sa­tion that wis­hes to digi­tise and make avail­able the work has to con­duct a dili­gent search to find its copy­right holder(s). In this search, it should rely on sour­ces such as data­ba­ses and regis­tries. One such tool that exists in the book publis­hing sec­tor is ARROW, the Accessible Registry of Rights Information and Orphan Works. It is hoped that other sec­tors will also deve­lop simi­lar cen­tral rights infor­ma­tion data­ba­ses. Doing so would greatly sim­plify and stream­line the con­duct of a relia­ble dili­gent search.

Secondly, the direc­tive esta­blis­hes that if a dili­gent search does not yield the iden­tity or loca­tion of the copy­right holder(s), the work shall be recognised as an orphan work. This sta­tus shall then, by vir­tue of mutual reco­gni­tion, be valid across the European Union. This implies that once a work is recognised as an orphan work, it shall be recognised as such across the European Union and the orga­ni­sa­ti­ons will be able to make it avail­able online in all Member States. The Directive also fore­sees the esta­blish­ment of a sin­gle European regis­try of all recognised orphan works that will be set up and run by OHIM, the European Trade Mark Office based in Alicante.

Thirdly, the pro­po­sal esta­blis­hes the uses that can be made of the orphan works. The bene­fi­ci­ary orga­ni­sa­ti­ons will be entit­led to use orphan works to achieve aims rela­ted to their public inte­rest mis­sion. They will be allo­wed to con­clude public-private part­nerships with com­mer­cial ope­ra­tors and to gene­rate reve­nues from the use of orphan works to cover the digi­ti­sa­tion costs.

The Directive also fore­sees a mecha­nism to allow a reap­pearing right hol­der to assert his copy­right and the­reby end the orphan work status.

5. What more can be done to pro­mote digi­tal libraries?

Orphan works, while import­ant, are only one of the issues that digi­tal libra­ries face in their quest to make Europe’s cul­tu­ral heri­tage avail­able online. The other issue is obtai­ning copy­right per­mis­si­ons for the online dis­play of out-of-commerce works.

Out-of-commerce works are works that are still pro­tec­ted by copy­right but are no lon­ger com­mer­ci­ally avail­able because the aut­hors and publis­hers have deci­ded neit­her to publish new edi­ti­ons nor to sell copies through the cust­o­mary chan­nels of com­merce. It is of cru­cial import­ance for a digi­tal library pro­ject that out-of-commerce works are not left behind.

The Commission has the­re­fore pro­mo­ted an «out of com­merce» sta­ke­hol­ders dia­lo­gue which led to the signa­ture, on the 20 September 2011, of a Memorandum of Understanding on out of com­merce books and lear­ned jour­nals bet­ween libra­ries on the one hand and publis­hers, aut­hors and their collec­ting socie­ties on the other. The Memorandum of Understanding con­tains the Key Principles that these par­ties will fol­low to license the digi­ti­sa­tion and making avail­able (inclu­ding across bor­ders in the EU) of books or lear­ned jour­nals that are out-of-commerce. It aims to encou­rage volun­tary collec­tive licen­ces. (See IP/11/1055)

For more infor­ma­tion on the Orphan Works Directive:

http://ec.europa.eu/internal_market/copyright/orphan_works/index_en.htm

Quelle: http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/11/333&format=HTML&aged=0&language=de&guiLanguage=en

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