Two steps forward one step back: new presidency note on the proposed orphan works directive

There is a new (dated 4 November 2011) note by the Polish presidency on two issues that have turned out to be controversial among the EU Member States in the negotiations about the Commission’s proposed orphan works directive. Both issues addressed in the presidency note have been identified by COMMUNIA in it’s policy paper on the proposed directivedirective and it is not really surprising to see that these have turned out to be controversial among the Members.

Unpublished works

The first of the two questions addressed in the note is whether unpublished works should be covered by the directive. The COMMUNIA policy paper argued that they should be included as ‘the orphan works problem is especially acute in respect of unpublished works’ and it seems that this view is shared by a number of Member States (‘delegations’). According to the presidency note,

[s]ome delegations asked for the inclusion of unpublished works into the scope of the Directive. Other delegations had doubts whether this would be the right way forward.

the presidency note proposes

to reconcile these different views by providing for the possibility to extend the scope of the Directive to unpublished orphan works […] without putting an obligation on Member States that oppose such an approach. It also requires from Member States making use of such possibility to limit its application to works for which it is reasonable to consider that they are the “country of origin”.

In essence the presidency is proposing a compromise that lets member states decide if they want to include ‘their’ unpublished works or not. While this is certainly better then excluding unpublished works altogether, it further fragments an already flawed European attempt to provide a sensible answer to the orphan works problem.

Legal mechanisms for the use of orphan works

The second question addressed in the presidency note deals with “legal mechanisms for the use of orphan works”. The original presidency proposal included a mechanism based on the exceptions to the reproduction and making available rights provided for in Articles 2 and 3 of Directive 2001/29/EC.

According to note a number of Member States have argued for more flexibility in implementing the permitted uses of orphan works. The issue here seems to be to provide room for more far-reaching arrangements that not only cover orphan works but would also permit the use of orphan works as part of (extended collective) licensing arrangements. The note contains new language for Article 6 that seeks to provide member states more flexibility.

In this aspect the presidency note would enable development of alternative models for dealing with the problem posed by orphan works. This is in line with the position taken by COMMUNIA in it’s policy paper.

Two steps forward one step back

Unfortunately the presidency note also attempts to further strengthen the requirement ‘that a remuneration is due to rights holders that put an end to the orphan status of their works, including in the case of uses under the exception’ that was first introduced as part of the first presidency compromise proposal.

As COMMUNIA has argued in it’s policy paper this particular provision has the potential to undermine the entire purpose of the proposed orphan works directive as it ‘will create continued financial uncertainty for users of recognized orphan works’ and as a consequence ‘the directive would provide users of orphan works with very little practical benefits over the status quo’.

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