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Orphan works – Frequently asked questions

European Commission - MEMO/12/743   04/10/2012

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European Commission

MEMO

Brussels, 4 October 2012

Orphan works – Frequently asked questions

1. What are orphan works and why is a directive to deal with them needed?

Orphan works are works like books, newspaper or magazine articles, or films that are still protected by copyright but for which the copyright holders cannot be located in order to obtain copyright permissions. Orphan works are found in the collections held by European libraries and cultural institutions.

The digitisation and dissemination of orphan works pose a particular cultural and economic challenge: the absence of a known right holder means that cultural institutions are unable to obtain the required authorisation, to digitise a book, for example. Orphan works represent a substantial part of the collections of Europe's cultural institutions (e.g. the British Library estimates that 40 per cent of its copyrighted collections – 150 million works in total - are orphan works).

That is why common rules on how to deal with such works are needed in order to proceed with large-scale digitisation projects, such as the Commission's Europeana portal.

As part of its Intellectual Property Rights (IPR) Strategy (see IP/11/630), the Commission adopted on 24 May 2011 a proposal to establish common rules on the digitisation (the conversion of analogue data, for example images, video, and text into digital form) and online display of so-called 'orphan works'.

Following the trilogue agreement by the European Parliament and the Council on 6 June 2012 (see MEMO/12/421) and the formal approval by the European Parliament on 13 September 2012, the Directive has finally been adopted today by the Council. It will enter into force by the end of the year. Member States will then have two years to transpose the Directive at national level.

2. What organisations will benefit from the Directive?

The new Directive applies to

  • publicly accessible libraries, educational establishments, museums,

  • archives,

  • film or audio heritage institutions

  • public service broadcasters.

Provided that all the conditions set out in the Directive are fulfilled, these cultural organisations will be entitled to digitise orphan works and make them publicly available on-line in all Member States on the basis of an exception to copyright applicable in the whole EU.

3. What works are covered by the Directive?

The Directive applies to following categories of works first published in the EU who are still protected by copyright but whose authors or other right holders cannot be anymore identified and located:

  • works in the print sector (books, journals, magazines and newspapers)

  • cinematographic and audio-visual works.

  • phonograms

  • works embedded or incorporated in other works or phonograms (e.g. pictures in a book)

The Directive also applies to unpublished works (such as letters, manuscripts, etc) under certain conditions.

4. What are the main elements of the new Directive?

First, the directive contains rules on how to identify orphan works. It states that a cultural organisation that wishes to digitise and make available the work has to conduct a diligent search to find its copyright holder(s). In this search, it should rely on sources such as databases and registries. One such tool that exists in the book publishing sector is ARROW, the Accessible Registry of Rights Information and Orphan Works. It is hoped that other sectors will also develop similar central rights information databases. Doing so would greatly simplify and streamline the conduct of a reliable diligent search.

Secondly, the directive establishes that if a diligent search does not yield the identity or location of the copyright holder(s), the work shall be recognised as an orphan work. This status shall then, by virtue of mutual recognition, be valid across the European Union. This implies that once a work is recognised as an orphan work, it shall be recognised as such across the European Union and the organisations will be able to make it available online in all Member States. The Directive also foresees the establishment of a single European registry of all recognised orphan works that will be set up and run by OHIM, the European Trade Mark Office based in Alicante.

Thirdly, the proposal establishes the uses that can be made of the orphan works. The beneficiary organisations will be entitled to use orphan works to achieve aims related to their public interest mission. They will be allowed to conclude public-private partnerships with commercial operators and to generate revenues from the use of orphan works to cover the digitisation costs.

The Directive also foresees a mechanism to allow a reappearing right holder to assert his copyright and thereby end the orphan work status.

5. What more can be done to promote digital libraries?

Orphan works, while important, are only one of the issues that digital libraries face in their quest to make Europe's cultural heritage available online. The other issue is obtaining copyright permissions for the online display of out-of-commerce works.

Out-of-commerce works are works that are still protected by copyright but are no longer commercially available because the authors and publishers have decided neither to publish new editions nor to sell copies through the customary channels of commerce. It is of crucial importance for a digital library project that out-of-commerce works are not left behind.

The Commission has therefore promoted an "out of commerce" stakeholders dialogue which led to the signature, on the 20 September 2011, of a Memorandum of Understanding on out of commerce books and learned journals between libraries on the one hand and publishers, authors and their collecting societies on the other. The Memorandum of Understanding contains the Key Principles that these parties will follow to license the digitisation and making available (including across borders in the EU) of books or learned journals that are out-of-commerce. It aims to encourage voluntary collective licences. (See IP/11/1055)

For more information on the Orphan Works Directive:

http://ec.europa.eu/internal_market/copyright/orphan_works/index_en.htm


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