Orphan Works Directive

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Directive 2012/28/EU
European Union directive
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TitleOrphan Works Directive
Made by European Parliament & Council
Made underArticle 53(1), 62 and 114
Journal reference L299, 27 October 2012, pp. 1–8
History
Date made25 October 2012
Came into force29 October 2014
Implementation date30 October 2014
Current legislation

Directive 2012/28/EU is a directive of the European Parliament and European Council enacted on 25 October 2012 that pertains to certain uses of orphan works. [1] Hence it is often referred to as the Orphan Works Directive (OWD). [2]

Contents

The directive sets out common rules on the digitisation and online display of orphan works. [1] After a diligent search has been completed, a work can be registered at the orphan works register of the European Union Intellectual Property Office. Registering a work at that database allows for certain permitted uses of that work by cultural heritage institutions. Only such institutions are allowed to submit an orphaned work to the register. [3] In case a copyright holder comes forward later, they are entitled to stop the institution's usage of the work and to ask for a retroactive license fee.

The directive's diligent search requirements have been criticized as burdensome and unworkable.

Basis

Orphan works are works like books, newspaper articles, or films, which may be protected under copyright but for which the copyright holder cannot be found. A substantial portion of the collections of Europe's cultural institutions are orphan works (e.g. the British Library estimates that 40 per cent of its copyrighted collections, 150 million works in total, are orphan works). [4] Orphan works are not available for legal use by filmmakers, archivists, writers, musicians, and broadcasters. Public libraries, educational institutions and museums, that digitise old manuscripts, books, sound recordings and film, may choose to not digitise orphan works, or make orphan works available to the public, [5] for fear that a re-appearing rights-holder may sue them for damages. [6]

The EU had set out large-scale digitisation programs (such as Europeana) and in order for these programs to be successful, common rules on how to deal with orphan works needed to be established. [4]

By early 2016, more than three years after the directive's enactment, the orphan works register only contained 1,435 works, which critics cited as evidence "that the EU approach to orphan works is unreasonably complex and won’t adequately address the problem it’s trying to fix," namely enabling mass digitization efforts. [7] After six years, in 2018, the number had reached 6,000. [3]

Works Covered by the Directive

This directive applies to the following orphan works that were created in the EU:

Under certain conditions, the directive can also apply to unpublished works (such as letters or manuscripts). [4] Whether orphaned software and video games ("Abandonware") fall under the audiovisual works definition is debated. [8]

Function

The directive provides regulations on how to identify orphan works. An organisation that wishes to digitise a work in question has to conduct a scrupulous search to find its copyright holder. In this search, it should rely on sources such as databases and registries like ARROW [9] for text and image-based works. A registry for orphan film is currently[ when? ] developed by ACE – Association of European Film Archives and Cinematheques in the FORWARD project. [10] A diligent search guideline and tool has also been developed by the EnDOW project. [11] By 2017, its tool for diligent searches was available for 20 European Union Member states. [12] Around that time, a study by EnDOW researchers warned that "the absence of hierarchical validity of the appropriate sources for Diligent Search leave the clearing of rights uncertain" and that "only the free accessibility of hierarchized sources will make Diligent Search workable". [13] At the time of the launch of the directive in 2012, it had been hoped that other sectors would develop similar information databases. [4]

The directive also establishes that if a search does not find the identity or location of the copyright holder, the work shall be officially recognised as an orphan work. This status shall be valid for the whole of the European Union, which means the organisation will be able to make it available online in all Member States. The directive also foresaw the establishment of a single European registry of all recognised orphan works to be set up and run by EUIPO, the European Union Intellectual Property Office based in Alicante. [4] This database went live in October 2014 as a publicly accessible online platform. [14]

Works identified as orphan works can be used by beneficiary organisations 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 digitisation costs. [4]

Under this directive, a reappearing copyright-holder can assert his/her copyright and thereby end the orphan work status, [4] and is entitled to license fees from the cultural institution for its usage of the work while it had orphan status. [3]

The Directive was influenced by a survey of the state of intellectual property law in the United Kingdom called the Hargreaves Review of Intellectual Property and Growth . James Boyle, one of the experts consulted for the Review, acknowledged the directive as "a start", but offered this criticism of the resulting policy: [15]

In brief, the scheme is heavily institutional, statist, and inflexible. Its provisions can really only be used by educational and cultural heritage institutions, only for non-profit purposes, with lengthy and costly licensing provisions designed to protect the monetary interests of—almost certainly—nonexistent rightsholders. The EU seemed never to grasp the idea that citizens also need to have access to orphan works, for uses that almost certainly present no threat to any living rightsholder.

Implementation

The date for implementation was 30 October 2014.

Implementation in the UK

Before the OWD in 2012 a number of studies had been published aiming to shed light on issues concerning Orphan Works. [16]

Related Research Articles

A copyright is a type of intellectual property that gives its owner the exclusive right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, educational, or musical form. Copyright is intended to protect the original expression of an idea in the form of a creative work, but not the idea itself. A copyright is subject to limitations based on public interest considerations, such as the fair use doctrine in the United States.

<span class="mw-page-title-main">Intellectual property</span> Ownership of creative expressions and processes

Intellectual property (IP) is a category of property that includes intangible creations of the human intellect. There are many types of intellectual property, and some countries recognize more than others. The best-known types are patents, copyrights, trademarks, and trade secrets. The modern concept of intellectual property developed in England in the 17th and 18th centuries. The term "intellectual property" began to be used in the 19th century, though it was not until the late 20th century that intellectual property became commonplace in most of the world's legal systems.

In international law, the Berne three-step test is a clause that is included in several international treaties on intellectual property. Signatories of those treaties agree to standardize possible limitations and exceptions to exclusive rights under their respective national copyright laws.

The copyright law of the European Union is the copyright law applicable within the European Union. Copyright law is largely harmonized in the Union, although country to country differences exist. The body of law was implemented in the EU through a number of directives, which the member states need to enact into their national law. The main copyright directives are the Copyright Term Directive, the Information Society Directive and the Directive on Copyright in the Digital Single Market. Copyright in the Union is furthermore dependent on international conventions to which the European Union or their member states are part of, such as TRIPS Agreement or the Berne Convention.

<span class="mw-page-title-main">European Union Intellectual Property Office</span>

The European Union Intellectual Property Office, founded in 1994, is the European Union Agency responsible for the registration of the European Union trade mark (EUTM) and the registered Community design (RCD), two unitary intellectual property rights valid across the 27 Member States of the EU. Every year, it registers an average of 135 000 EU trade marks and close to 100 000 designs. The EUIPO is also responsible for maintaining an Orphan Works Registry. Registered works have certain permitted acts under the Orphan Works Directive.

The first-sale doctrine is an American legal concept that limits the rights of an intellectual property owner to control resale of products embodying its intellectual property. The doctrine enables the distribution chain of copyrighted products, library lending, giving, video rentals and secondary markets for copyrighted works. In trademark law, this same doctrine enables reselling of trademarked products after the trademark holder puts the products on the market. In the case of patented products, the doctrine allows resale of patented products without any control from the patent holder. The first sale doctrine does not apply to patented processes, which are instead governed by the patent exhaustion doctrine.

An orphan work is a copyright-protected work for which rightsholders are positively indeterminate or uncontactable. Sometimes the names of the originators or rightsholders are known, yet it is impossible to contact them because additional details cannot be found. A work can become orphaned through rightsholders being unaware of their holding, or by their demise and establishing inheritance has proved impracticable. In other cases, comprehensively diligent research fails to determine any authors, creators or originators for a work. Since 1989, the amount of orphan works in the United States has increased dramatically since some works are published anonymously, assignments of rights are not required to be disclosed publicly, and registration is optional and, thus, many works' statuses with respect to who holds which rights remain unknown to the public even when those rights are being actively exploited by authors or other rightsholders.

<span class="mw-page-title-main">Enforcement Directive</span>

Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights is a European Union directive in the field of intellectual property law, made under the Single Market provisions of the Treaty of Rome. The directive covers civil remedies only—not criminal ones.

Copyright in the Netherlands is governed by the Dutch Copyright Law, copyright is the exclusive right of the author of a work of literature or artistic work to publish and copy such work.

<span class="mw-page-title-main">Satellite and Cable Directive</span> 1993 European Union directive

The Satellite and Cable Directive, formally the Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission, is a European Union directive that governs the application of copyright and related rights to satellite and cable television in the European Union. It was made under the internal market provisions of the Treaty of Rome.

The Gowers Review of Intellectual Property was an independent review of UK intellectual property (IP) focusing on UK copyright law that was published in December 2006. The then Chancellor of the Exchequer Gordon Brown commissioned Andrew Gowers to lead the review in December 2005. The Review was published on 6 December 2006 as part of the Chancellor's annual pre-budget report. The review concludes that the UK's intellectual property system is fundamentally strong but made 54 recommendations for improvements.

<span class="mw-page-title-main">Sweat of the brow</span> Copyright law doctrine

Sweat of the brow is a copyright law doctrine. According to this doctrine, an author gains rights through simple diligence during the creation of a work, such as a database, or a directory. Substantial creativity or "originality" is not required.

An orphan film is a motion picture work that has been abandoned by its owner or copyright holder. The term can also sometimes refer to any film that has suffered neglect.

The following outline is provided as an overview of and topical guide to intellectual property:

The public domain (PD) consists of all the creative work to which no exclusive intellectual property rights apply. Those rights may have expired, been forfeited, expressly waived, or may be inapplicable. Because no one holds the exclusive rights, anyone can legally use or reference those works without permission.

Limitations and exceptions to copyright are provisions, in local copyright law or the Berne Convention, which allow for copyrighted works to be used without a license from the copyright owner.

<span class="mw-page-title-main">Europeana</span> Digital collection of European cultural heritage

Europeana is a web portal created by the European Union containing digitised cultural heritage collections of more than 3,000 institutions across Europe. It includes records of over 50 million cultural and scientific artefacts, brought together on a single platform and presented in a variety of ways relevant to modern users. The prototype for Europeana was the European Digital Library Network (EDLnet), launched in 2008.

Extended collective licensing (ECL) are collective copyright and related rights laws and licensing agreements. ECL agreements by law apply to all rights holders in a class, whether they are members of the collecting society or not, and establish terms of licenses with users or classes of users. The first ECL laws and agreements were established in the Nordic countries in the 1960s for television and radio broadcasting.

The Association of European Cinematheques is an affiliation of 49 European national and regional film archives founded in 1991. Its role is to safeguard the European film heritage and make these rich audiovisual records collected and preserved by the various film archives accessible to the public. ACE is a regional branch of FIAF Fédération Internationale des Archives du Film / International Federation of Film Archives. ACE members are non-profit institutions committed to the FIAF Code of Ethics.

<span class="mw-page-title-main">Collective work</span>

A collective work is a work that contains the works of several authors assembled and published under the direction of one natural or legal person who owns the copyright in the work as a whole. Definitions vary considerably from one country to another, but usually treat ownership of the work as a whole as distinct from ownership of the individual contributions, so the individual authors may retain the right to publish their work elsewhere. It is common for publication of articles on the Internet, when isolated from the context of the overall work, to be considered to be outside of the standard agreement between the author and the owner of the collective work.

References

  1. 1 2 "Orphan works". European Commission. Retrieved 27 May 2014.
  2. ↑ "Commissioner Barnier welcomes final adoption of the Orphan Works Directive by the Council". European Commission - European Commission. European Commission. 2012. Retrieved 13 June 2022.
  3. 1 2 3 Martinez, Merisa; Terras, Melissa (13 May 2019). "'Not Adopted': The UK Orphan Works Licensing Scheme and How the Crisis of Copyright in the Cultural Heritage Sector Restricts Access to Digital Content". Open Library of Humanities. 5 (1): 36. doi: 10.16995/olh.335 . ISSN   2056-6700.
  4. 1 2 3 4 5 6 7 "Memo – Orphan works – FAQ". europa.eu. European Commission. 4 October 2012. Retrieved 27 May 2014.
  5. ↑ Netanel, Neil (2008). Copyright's paradox. Oxford University Press US. p. 200. ISBN   978-0-19-513762-0.
  6. ↑ Borgman, Christine L. (2007). Scholarship in the digital age: information, infrastructure, and the internet . MIT Press. p.  108. ISBN   978-0-262-02619-2.
  7. ↑ Zeinstra, Maarten (16 February 2016). "Research: Orphan Works Directive does not work for mass digitisation". International Communia Association. Retrieved 4 January 2020.
  8. ↑ Maier, Henrike (2015). "Games as Cultural Heritage Copyright Challenges for Preserving (Orphan) Video Games in the EU" (PDF). JIPITEC. Humboldt Universität zu Berlin. p. 120. Retrieved 18 January 2016.
  9. ↑ "About Arrow | Arrow". Archived from the original on 15 July 2017. Retrieved 26 April 2020.
  10. ↑ "Home". project-forward.eu.
  11. ↑ "EnDOW - Heritage Plus Project Profile - Heritage Portal". www.heritageportal.eu. Archived from the original on 14 May 2018.
  12. ↑ Maurizio (22 December 2017). "List of sources for diligent search in 20 European countries". diligent search. Retrieved 4 January 2020.
  13. ↑ Maurizio (19 June 2017). "Report: Only the free accessibility of hierarchized sources will make Diligent Search workable". diligent search. Retrieved 4 January 2020.
  14. ↑ "Orphan Works Database goes live". euipo.europa.eu. 27 October 2014. Retrieved 4 January 2020.
  15. ↑ "(When) Is Copyright Reform Possible? Lessons from the Hargreaves Review" by James Boyle (2015), also in: Okediji, Ruth L., ed. (30 March 2017). Copyright Law in an Age of Limitations and Exceptions. Cambridge University Press. ISBN   978-1-316-56526-1.
  16. ↑ Martinez, Merisa; Terras, Melissa (2019). "'Not Adopted': The UK Orphan Works Licensing Scheme and How the Crisis of Copyright in the Cultural Heritage Sector Restricts Access to Digital Content". Open Library of Humanities. 5 (1). doi: 10.16995/olh.335 . ISSN   2056-6700. S2CID   182941857 . Retrieved 11 June 2022.
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