[A2k] Orphan Works and Collective Rights Management

Erik Josefsson erik.hjalmar.josefsson at gmail.com
Sun Sep 16 07:03:25 PDT 2012


Dear all,

The Orphan Works Directive was adopted Thursday 13 September 2012 with 
an overwhelming majority: 531 votes in favour, 11 against and 65 
abstentions.

A provisional version of the adopted text is available here 
<http://goo.gl/C1MSX>.


The whole directive has been renumbered, the former 1.2.c is now Article 
1.5:

    *Article 1
    Subject-matter and scope
    [...]*
    *5.* /*This Directive does not interfere with any arrangements
    concerning the _management of rights_ at national level.*/


Compared to the leak, the draft CRM directive has been renamed the 
Directive on /"collective management of copyright and related rights and 
multi-territorial licensing of rights in musical works for online uses 
in the internal market"/. I have made a diff between the leak and the 
draft here: http://euwiki.org/CRM

It is interesting to see that the leak and the draft has diverging 
provisions on Orphans, and also that the definition of *"management of 
rights"* (see above) in the leak has been removed in the draft. Further, 
it seems at a first glance that the collecting societies gets away with 
a more flexible regime than the Libraries as the diligent search 
requirements are toned down with the word "reasonable" in recital 15:

    "Moreover, in order to ensure that the amounts due to rightholders
    are appropriately and effectively distributed, it is necessary to
    require collecting societies to undertake diligent and good faith
    *reasonable* measures to identify and locate the relevant rightholders."

The word is also present in art 23 and 24 thereby lowering the burden on 
collecting societies to actually know who they represent ("accuracy of 
repertoire information"). The orphaned repertoire is maybe not the core 
question in the CRM directive, but it interesting that the Commission 
denied any relation between the CRMD and the OWD during negotiations of 
the latter.

Below some excerpts from the diff. And below that a press statement by 
EBU on the OWD outcome.

Best regards.

//Erik


*LEAK Article 2*
	*DRAFT Article 3*
==== Article 2 Definitions ====
	
==== Article 3 Definitions ====
For the purpose of this Directive, the following definitions shall apply:
	
For the purposes of this Directive, the following definitions shall apply:
(a) 'management of copyright and related rights' means the provision of 
the following services: the grant of licences to users, the auditing of 
licensees and monitoring of the use of rights, the enforcement of 
copyright and related rights, the collection of income derived from the 
exploitation of rights and the distribution of royalties to rightholders;
	
(b) 'collecting society' means any organisation which is mandated by law 
or authorised by way of a rights mandate, assignment, licence, 
entrustment or any other contractual arrangement, by more than one 
rightholder, to manage copyright or rights related to copyright as its 
sole purpose or as one of its main purposes and which is owned or 
controlled by its members;
	
(a) 'collecting society' means any organisation which is authorised by 
law or by way of assignment, licence or any other contractual 
arrangement, by more than one rightholder, to manage copyright or rights 
related to copyright as its sole or main purpose and which is owned or 
controlled by its members;



*LEAK Recital 19*
	*DRAFT Recital 15*
(19) Collecting societies manage funds which are ultimately due to 
rightholders for the exploitation of their rights. Therefore, it is 
important that collecting societies exercise the utmost diligence in the 
collection and the management of those funds. They should be managed 
separately from the own assets of the collecting society and, pending 
their distribution to rightholders, they should be invested in 
accordance with the 'prudent person' rule and according to the 
investment policy decided by the general meeting of the collecting 
society. Moreover, in order to ensure that those funds are appropriately 
and effectively distributed to rightholders, it is necessary to require 
collecting societies to undertake reasonable measures to identify the 
relevant rightholders. It is also appropriate to provide for the 
approval by members of collecting societies of the rules governing the 
situation where, due to the lack of identified rightholders, the funds 
collected for the exploitation of a work cannot be distributed.
	
(15) Collecting societies collect, manage and distribute revenue from 
the exploitation of the rights entrusted to them by rightholders. This 
revenue is ultimately due to rightholders who may be members of that 
society, or another society. It is therefore important that collecting 
societies exercise the utmost diligence in collecting, managing and 
distributing that revenue. Accurate distribution is only possible where 
collecting societies maintain proper records of membership, licences and 
use of works and other subject matter. Where appropriate, data should 
also be provided by rightholders and users and verified by the 
collecting societies. Amounts collected and due to rightholders should 
be managed separately from any own assets of the collecting society and, 
if they are invested, pending their distribution to rightholders, this 
should be carried out in accordance with the investment policy decided 
by the collecting societies' general meeting. In order to maintain a 
high level of protection for the rights of rightholders and to ensure 
that any income which may be derived from exploitation of their rights 
accrues for the benefit of rightholders, the investments made and held 
by the collecting society should be managed in accordance with criteria 
which would oblige the collecting society to act prudently, while 
allowing the collecting society to decide on the most secure and 
efficient investment policy. This should allow the colleting society to 
opt for an asset allocation that suits the precise nature and duration 
of any exposure to risk of any rights revenue invested and which does 
not unduly prejudice any rights revenue owed to rightholders. Moreover, 
in order to ensure that the amounts due to rightholders are 
appropriately and effectively distributed, it is necessary to require 
collecting societies to undertake diligent and good faith reasonable 
measures to identify and locate the relevant rightholders. It is also 
appropriate to provide for the approval by members of collecting 
societies of the rules governing any situation where, due to the lack of 
identified or located rightholders, amounts collected cannot be distributed.




*LEAK Article 10* 	*DRAFT Article 12*
1. The collecting society shall regularly and diligently distribute and 
pay amounts due to all rightholders it represents on non-discriminatory 
and objective terms.
	
1. Member States shall ensure that the collecting society regularly and 
diligently distributes and pays amounts due to all rightholders it 
represents. The collecting society shall carry out such distribution and 
payments no later than 12 months from the end of the financial year in 
which the rights revenue was collected, unless objective reasons related 
in particular to reporting by users, the identification of rights, 
rightholders or to the matching of information on works and other 
subject matter with rightholders prevent the collecting society from 
respecting this deadline. The collecting society shall carry out such 
distribution and payments accurately, ensuring equal treatment of all 
categories of rightholders.
2. The collecting society shall carry out such distribution and payments 
accurately and without undue delay and, and shall endeavour to carry out 
such distribution and payments no later than 18 months from the end of 
the financial year in which the collection of rights' revenue occurred. 
Where royalties cannot be distributed, after 5 years from the end of the 
financial year in which the collection of the rights' revenue occurred, 
and provided that the society has taken reasonable measures to identify 
the rightholders, the collecting society may treat such royalties as 
non-distributable, without prejudice to the right of the rightholder to 
claim such sums from the collecting society within the applicable 
statutory limitation period.
	
2. Where the amounts due to rightholders cannot be distributed, after 
five years from the end of the financial year in which the collection of 
the rights revenue occurred, and provided that the collecting society 
has taken all necessary measures to identify and locate the 
rightholders, the collecting society shall decide on the use of the 
amounts concerned in accordance with Article 7(5)(b), without prejudice 
to the right of the rightholder to claim such amounts from the 
collecting society.




*Adoption of EU Orphan Works Directive: first step towards copyright 
modernization*

Brussels, 14 September 2012

The European Broadcasting Union (EBU) welcomes yesterday's first reading 
adoption of the Directive on Orphan Works by the European Parliament: it 
is the first step towards much-needed copyright modernization.

The legislative proposal defines a common approach to determining the 
orphan status of a work and enables users to make it available 
throughout Europe for purposes related to their public interest missions.

Recalling that providing a suitable legal framework to facilitate the 
digitization and dissemination of works is key for Europe's creative 
economy, the Directive nevertheless only resolves a few very specific 
situations.

As the leading association of national media organizations in the world, 
the EBU regrets that the Directive stops short of providing a genuine 
solution for licensing valuable television and radio archive material. 
Rights clearance systems should unlock this valuable cultural heritage 
and enable Europeans to access this important part of their history on 
the internet.

A number of practical measures are still needed to boost Europe's 
creative economy, such as technology-neutral licensing systems for the 
transmission of programmes in the digital environment, legal certainty 
for broadcasters' online services across borders, and the cross-border 
recognition of national rights-management solutions.

/"Public service media have all engaged in ambitious digitization plans 
and have invaluable radio and audiovisual archive material to bring to 
the public. Until now, regrettably, these archives cannot be fully 
released as rights clearance procedures do not take account of 
broadcasters' internet-based services. The Directive on Orphan Works is 
the first step forward in a series of initiatives to find rights 
management solutions that ease the online circulation of cultural 
content all over Europe, and fully respect rightholders' interests,"/ 
said Ingrid Deltenre, Director General of the EBU.

The EBU is still waiting for a solution to online rights' licensing that 
takes the specific activities of broadcasters into account. The EBU 
believes that the recently published Proposal for a Directive on 
Collective Rights Management and the follow-up to the Green Paper on the 
Online Distribution of Audiovisual Works show European institutions' 
determination to find further solutions to adapting copyright to the 
digital economy.



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