‘Orphan Works’: European Parliament and European Council Announce Agreement on Draft Legislation

The European Parliament and the EU Council announced on June 6th to have achieved one further step toward EU legislation on ‘orphan works’ (we’re deliberately using ‘orphan works’ with comas because if this appellation is commonly used, it is based upon a metaphor being potentially misguiding; see our former post on Prof. Lydia Loren’s proposal on the ‘hostage works’ appellation).

Based upon the draft Directive on certain permitted uses of orphan works tabled by the Commission in 2011 (COM/2011/0289), about which COMMUNIA expressed some Policy Recommendations, the two European regulation bodies have come to an agreement. Although the deal is said to be ‘informal’ (it still has to get final approval from the Parliament’s Committee on Legal Affairs, Parliament as a whole and in the Council), it shows the ongoing efforts of the European regulator to move on with the ‘orphan works’ issue. The text of the agreement has not yet been made available. According to the press-release from the Parliament’s Committee on Legal Affairs:

“This legislation would allow everyone to access such “orphan works” and take forward the project of making Europe’s cultural heritage available online.”

It seems that the agreement would not bring major changes to the Commission’s proposal. This lets us think that our concerns about the shortage of the Directive are to remain, especially as regards its impact on the digital Public Domain. Nevertheless, a few elements unveiled by the press-release deserve some comments.

‘Orphan’ status granted after ‘diligent search’:

According to the Directive proposal, 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 Parliament and the Council concur with the Commission, without adding further precisions about the criteria to be applied to such a ‘diligent search’ process imposed to users.

COMMUNIA argued that the ‘diligent search’ process as proposed by the Commission was flawed and short-sighted. In the meanwhile, the Parliament and the Council seem not to have ceased the occasion to improve the criteria set forth by the legislation proposal, which do not enable full potential of ‘orphan works’ uses and fail to guarantee legal certainty for ‘orphan works’ users.

For ‘any audiovisual or printed material’…

The Parliament and the Council agreed on the categories of works being encompassed by the ‘orphan work’ status, while adding some elements to the Commission’s proposal. The press-release states that ‘orphan works’ status would cover:

“(…) any audiovisual or printed material, including a photograph or an illustration embedded in a book, published or broadcast in any EU country.”

Whereas photographs were surprisingly absent from the Commission’s draft (as it was already highlighted in our Policy Recommendations), their express inclusion as a category of works eligible for ‘orphan’ status would be an improvement.

… even unpublished:

As the EU Council had already opened the door to include some unpublished works into the scope of ‘orphan works’ – albeit rather timidly and not fully in line with COMMUNIA’s Policy Recommendations arguing for a clear inclusion of unpublished works (as ‘the orphan works problem is especially acute in respect of unpublished works’) – the message seems to be reasserted more strongly in the latest draft legislation document worded under the Danish Presidency. According to the press-release:

“[The ‘orphan’ status] 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.”

Even if the inclusion of unpublished works is still not clear enough and does not fully cope with the ‘orphan works’ problem, the EU regulator seems to be ready to guide Member-States in this respect (contrary to the former Polish Presidency note leaving Member-States decide whether unpublished works could also be deemed as ‘orphan works’).

Securing the interests of public institutions:

The Parliament says to have 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 would aim at limiting the risk from future copyright infringement claims (the press-release quotes the example of the Google Books project having been blocked in court).

When right-holders come forward to claim their rights on a work after it has been placed on line, the Parliament and the Council would like to limit the amount of money public institutions would have to pay to authors as compensation:

“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.”

Such a wording would tend to place public institutions’ interest in front of those of authors in situations where the latter claim rights later in the process of ‘orphan works’ use. The Parliament and the Council say to have further agreed on a new provision allowing public institutions to generate some revenue from the use of ‘orphan works’ to pay search and digitisation costs.

However, we still don’t know the exact wording of these provisions and their genuine impact on ‘orphan works’ use for public institutions.

Lidia Geringer de Oedenberg (Polish MEP for the S&D), who is heading the negotiations on this legislation as Rapporteur in the Parliament, welcomed the deal as a: “first step towards harmonisation of copyright rules in the EU“. Although this assertion sounds rather sibylline in the context of an EU copyright regulation already containing several harmonization Directives, it reflects the high expectations the European regulator has about the legislation on ‘orphan works’ within the whole EU copyright legal system.

In the meantime, we are waiting for the consolidated version of the Directive to be formally released to further comment on it. More to come soon (probably this week).

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