[A2k] More on Orphan works in EU

David Hammerstein hammerstein.david3 at gmail.com
Tue Jun 12 00:46:02 PDT 2012


I tend to agree with Erik. From what I have seen as yet, still awaiting the
final text,  there is very little evidence that this proposal means a
substantial step forward toward mass digitization nor EU wide harmonization
of easy access to orphan works. There does not seem to be any clear
limitation on liability either, just an ambiguous non-binding declaration
of good intentions.

  David

2012/6/9 Erik Josefsson <erik.hjalmar.josefsson at gmail.com>

> The consolidated version (after lawyer linguist clean-up) of the of the
> OW Directive Proposal is expected to be adopted in COREPER on Wednesday.
>
> However, there is as far as I can see no basis for the claim that there
> is a binding "provision to protect public institutions from the risk of
> having to pay large sums to authors who show up later". There is a
> recital (recitals are not binding), but nothing in it guarantees that
> the sums end up small since it says that the determination of "the
> possible level of fair compensation" for use prior to the re-appearance
> of a rightholder should weigh in a diversity of factors, among others
> "cultural promotion objectives" and "possible harm to rightholders".
>
> On the contrary, what is now binding is that "fair compensation" shall
> be paid for "use that has been made" prior to the re-appearance of a
> rightholder.
>
> I cannot see how that binding provision creates legal certainty for
> libraries.
>
> Further, in my opinion, it was JURI opinion that libraries were to
> operate in good faith as to provide for (cost saving) flexibility with
> regards to searches and legal certainty with regards to rights ("good
> faith" pre-dates even Roman law). This position was abandoned at some
> point before the last trilogue in favour of the current outcome, which
> as far as I understand, requires a library to ensure "a diligent search
> is carried out in good faith" for each embedded, incorporated and/or
> integral part of a work. As I understand it, a library can therefore now
> fail two legal tests (instead of one) for each part of a work which can
> be considered embedded, incorporated or integral.
>
> So, I am sorry to say that I cannot subscribe to that "Parliament's
> negotiating team secured provisions to make it safer and easier for
> public institutions such as museums and libraries to search for and use
> orphan works."
>
> I think the opposite is true. It will not be safe and it will not be
> easy for libraries.
>
> In any case, it has been decided in a binding article that "the
> directive does not interfere with any arrangements concerning
> the management of rights at national level". I am not sure what that
> means, but I guess that if there is a conflict between the directive and
> a national solution (i.e. involving collective societies), the latter
> prevails by default. If that's the case, there is no harmonising effect
> of this directive whatsoever.
>
> How that can be legal at all is beyond my comprehension.
>
> //Erik
>
>
> On 06/08/2012 09:54 PM, Manon Ress wrote:
> > quote:
> >
> > MEPs agreed that the right holder should be entitled to put an end to
> > the orphan status of a work at any time and claim an appropriate
> > compensation for the use made out of it.
> >
> > They nonetheless inserted a provision to protect public institutions
> > from the risk of having to pay large sums to authors who show up
> > later. compensation would have to be calculated case by case, taking
> > account of the actual damage done to the author's interests and the
> > fact that the use was non-commercial. This should ensure that
> > compensation payments remain small.
> >
> > Council representatives also agreed to a proposal by MEPs that a new
> > article be inserted in the draft legislation to allow public
> > institutions to generate some revenue from the use of an orphan work
> > (e.g. goods sold in a museum shop). All of this revenue would have to
> > be used to pay for the search and the digitisation process.
> >
> > end of quote
> >
> > "Orphan" works: informal deal done between MEPs and Council
> > JURI Free movement of services - 06-06-2012 - 16:52
> >
> http://www.europarl.europa.eu/news/en/pressroom/content/20120606IPR46383/html/Orphan-works-informal-deal-done-between-MEPs-and-Council
> >
> > A photo, a film or a poem that is covered by a copyright, but whose
> > right holder cannot be found, could be made publicly available across
> > the EU, under draft legislation informally agreed by Parliament and
> > Council representatives on Wednesday. This legislation would allow
> > everyone to access such "orphan works" and take forward the project of
> > making Europe's cultural heritage available online.
> >
> > Lidia Geringer de Oedenberg (S&D, PL), who is steering the legislation
> > through Parliament and led the negotiations, welcomed the deal as a:
> > "first step towards harmonisation of copyright rules in the EU". "The
> > regulation will promote culture and finally make it possible to make
> > some hidden treasures available to the general public", she added at
> > the end of the negotiating round.
> >
> > Parliament's negotiating team secured provisions to make it safer and
> > easier for public institutions such as museums and libraries to search
> > for and use orphan works. These provisions include clear rules on
> > compensation for right holders who come forward after a work has been
> > placed on line and a possibility for institutions to use any revenue
> > from its use to pay search and digitisation costs.
> >
> > Today, digitising an orphan work can be difficult if not impossible,
> > since in absence of the right holder there is no way to obtain
> > permission to do so. The new rules would protect institutions using
> > orphan works from future copyright infringement claims, and thus avoid
> > court cases like that in the US, in which a Google project to digitise
> > and share all kinds of books, including orphan works, was blocked on
> > the grounds that the orphan works question should be settled by
> > legislation, not private agreements.
> >
> > "Diligent" search to protect copyright
> >
> > According to the agreed text, a work would be deemed to be orphan if,
> > after a "diligent" search made in good faith, it was not possible to
> > identify or locate the copyright holder. The draft legislation lays
> > down criteria for carrying out the search.
> >
> > Works granted orphan status would be then made public, through
> > digitisation and only for non-profit purposes. A work deemed to be
> > "orphan" in any one Member State would be deemed as such throughout
> > the EU. This would apply to any audiovisual or printed material,
> > including a photograph or an illustration embedded in a book,
> > published or broadcast in any EU country. It would also apply to works
> > not published but nonetheless made available by institutions, provided
> > that they could reasonably assume that the right holder would not
> > object to this act.
> >
> > Compensation if copyright holder shows up
> >
> > MEPs agreed that the right holder should be entitled to put an end to
> > the orphan status of a work at any time and claim an appropriate
> > compensation for the use made out of it.
> >
> > They nonetheless inserted a provision to protect public institutions
> > from the risk of having to pay large sums to authors who show up
> > later. compensation would have to be calculated case by case, taking
> > account of the actual damage done to the author's interests and the
> > fact that the use was non-commercial. This should ensure that
> > compensation payments remain small.
> >
> > Council representatives also agreed to a proposal by MEPs that a new
> > article be inserted in the draft legislation to allow public
> > institutions to generate some revenue from the use of an orphan work
> > (e.g. goods sold in a museum shop). All of this revenue would have to
> > be used to pay for the search and the digitisation process.
> >
> > Next steps
> >
> > The outcome will need final approval from the Committee on Legal
> > Affairs, Parliament as a whole and in the Council.
> > REF. : 20120606IPR46383
> >
>
>
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