[A2k] EP and Council want to harmonize copyright rules re orphan works

Manon Ress manon.ress at keionline.org
Thu Jun 7 15:50:45 PDT 2012

EP and Council want to harmonize copyright rules re orphan works
Article | June 7, 2012 - 11:02am


The European Parliament  and the European Council took a large step
towards harmonizing copyright rules across the EU. On Wednesday, the
MEPs and the Council informally agreed on a piece of draft legislation
that, if ratified, would grant the public access to copyrighted
audiovisual or printed material if the right holder cannot be
identified. Such works are also referred to as “orphan works.”

MEP Lidia Geringer de Oedenberg, a key actor in the negotiation
process, expressed the importance of the deal by stating that "the
regulation will promote culture and finally make it possible to make
some hidden treasures available to the general public."

The EP’s negotiating team agreed on key provisions that would make it
easier and safer for public institutions, such as libraries, to use
orphan works. These provisions include, among others, rules on
compensation for the right holders of copyrighted materials who come
forward after the work has been made available online.

Additional provisions would enable institutions to pay for
digitization and search costs with revenue acquired from its use.

Currently, there is no way of getting permission to digitize orphan
works, therefore it is nearly impossible to make them publicly
available online.

According to the new rules, institutions would be protected from
copyright infringement claims. This would avoid court cases such as in
the US, in which Google had to discontinue its project of digitizing
and sharing books online, including orphan works.

The agreed text clearly defines what would be considered an orphan
work. If the copyright holder could not be identified and located
after a “diligent” search, the work would be classified as an orphan
work. The draft legislation clearly defines the criteria needed for
carrying out a “diligent” search.

If a piece of work is granted official orphan status, it may be made
publicly available, but only for non-profit purposes.

Furthermore, if a piece of work were deemed to be orphan in one EU
state, it would have to be recognized as such throughout the EU. This
would not only apply to any audiovisual or printed material broadcast
or published in any EU state, but also to unpublished works made
available by institutions if the right holder is not expected to

However, in case the copyright holder comes forward, MEPs agreed that
he or she should have the right to invalidate the orphan status of a
work and claim an appropriate compensation.

In order to protect public institutions from having to pay huge sums,
MEPs included a provision stipulating that compensation would have to
be calculated case by case.

The MEPs also proposed the inclusion of a new article in the draft
legislation that would allow institutions to obtain revenue from the
use of an orphan work. This revenue could only be used to cover search
and digitization costs.

Council representatives agreed to the proposal of the new article.

However, in order to finalize the draft legislation approval is needed
from the Committee on Legal Affairs, the EP and the Council.

Manon Anne Ress
Knowledge Ecology International
1621 Connecticut Ave, NW, Suite 500
Washington, DC 20009 USA
manon.ress at keionline.org

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