Cultural works - photos, films, works of literature, etc – granted orphan status, ie whose copyright holders cannot be found, may be made public throughout the EU in digital form but only for non-lucrative purposes. Thus provides the draft directive on which the Council, European Parliament and Commission worked out a deal in three-way talks, on 6 June. The directive now has to be approved by the EP’s Committee on Legal Affairs (JURI), the EP plenary and the Council.

For the moment, the digitisation of an orphan work can be difficult if not impossible since, in the absence of a rights holder, authorisation for digitisation cannot be obtained. The new rules would protect the institutions that use orphan works against copyright infringement claims.

Under the directive, a work would be deemed to be orphan if, after a “diligent” search made in good faith, it proves impossible to identify or locate the copyright holder. The draft legislation lays down criteria for carrying out such searches. A work given orphan status in one member state will be recognised as such throughout the EU. This rule will apply to all audiovisual or printed material, including photographs or illustrations contained in a book, published or broadcast in any EU state. It will also apply to unpublished works that are available through institutions, provided the institutions can reasonably assume that the rights holder would not object to this act.

It was also agreed that the rights holder should be entitled to put an end to the orphan status of a work at any time and request appropriate compensation for the use made of the work. A provision was added to protect public institutions against the risk of having to pay large amounts of money to authors who show up later. The compensation will have to be calculated case by case, the aim being to ensure that compensation payments remain small.

The Council accepted MEPs’ request for the inclusion of a new article entitling public institutions to draw revenues from the use of orphan works. These revenues should be used to pay for the search and digitisation process.

Provisions are also included in the text to ensure that public institutions can search for and use orphan works more securely and quickly.

Lidia Geringer de Oedenberg (S&D, Poland), who steered the negotiations for Parliament, welcomed the agreement as a “first step towards harmonisation of copyright rules in the EU”. Internal Market Commissioner Michel Barnier applauded the deal, which will enable EU citizens to “access our common cultural heritage online, wherever they are. At the same time, creators’ rights are respected”.

Background

Orphan works are books, newspapers, films, etc that are covered by copyright but whose rights holders cannot be identified or located. The objective of the proposal for a directive on certain authorised uses of orphan works, presented on 24 May 2011, is to set up a legal framework that guarantees lawful cross-border online access to orphan works contained in the collections of online digital libraries or archives operated by a variety of institutions targeted by the proposal, provided these works are used to exercise the public-interest missions of such institutions. The proposal introduces the principle of mutual recognition of orphan work status (if a work is recognised as such in one member state, this status must be recognised by all the member states).