Agreement Reached on Proposed EU Directive on Orphan Works
On 6 June 2012, the European Commission, European Parliament and Council of the European Union reached agreement on the proposed EU Directive governing how orphan works should be handled and archived.
According to the definition of the draft Directive, “orphan works” refers to copyrighted audiovisual and printed material first published or broadcast in any EU member states with their copyright holders unable to be identified or located. Orphan works represent a substantial part of the collections of Europe's cultural institutions, ranging from around 20% for films to 90% for photography.
The absence of a known rightholder means that users are unable to obtain the required authorisation to make them available to the public, for fear that a re-appearing copyright owner may sue them for damages. A major benefit brought by the passing of the legislation is that public libraries and museums will not need to wait for the term of copyright protection on orphan works to expire before they can digitally archive the materials.
Some salient features of the proposed Directive are:
- diligent search: the status of an orphan work is established on condition that a diligent search conducted according to prescribed criteria has been performed but failed to identify or locate the rightholder;
- mutual recognition: a work deemed to be an orphan work shall be considered the same throughout the EU;
- respect of the rightholder’s legitimate interest: a reappearing rightholder can assert his copyright at any time according to stated methods and claim appropriate compensation, thereby ending the orphan work status;
- moderate compensation to avoid inhibition of use: compensation would have to be calculated case by case, taking account of the actual damage done to the rightholder's interests and the non-commercial nature of such use, to help ensure that the payments remain small.
