Explanatory Memorandum to COM(2011)289 - Permitted uses of orphan works - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2011)289 - Permitted uses of orphan works. |
|---|---|
| source | COM(2011)289  |
| date | 24-05-2011 |
1. CONTEXT OF THE PROPOSAL
Prior authorisations are necessary to make works protected by copyright available to the public in an online digital library or archive. When the relevant copyright owner cannot be identified or found the works in question are known as orphan works. Consequently, the necessary authorisations to make available works online cannot be obtained. Libraries or other institutions that make works available online to the public without prior authorisation risk infringing copyright.
The main objective of this proposal is to create a legal framework to ensure the lawful, cross-border online access to orphan works contained in online digital libraries or archives operated by a variety of institutions that are specified in the proposal when such orphan works are used in the pursuance of the public interest mission of such institutions. Such works include works which are published in the form of books, journals, newspapers, magazines or other writings, including works embedded in them, as well as audiovisual and cinematographic works in the collections of film heritage institutions, and audio, audiovisual and cinematographic works contained in the archives of public service broadcasting organisations and produced by them. With regard to the archives of public service broadcasters and the special position of public service broadcasters as producers there is a need to limit the phenomena of orphan works by providing a cut off date for works that are within the scope of the proposal.
This aim is to be achieved through a system of mutual recognition of the orphan status of a work. In order to establish the 'orphan work' status, libraries, educational establishments, museums or archives, film heritage institutions and public service broadcasting organisations are required to carry out a prior diligent search, in line with the requirements specified in the proposed directive, in the Member State where the work was first published. Once the diligent search establishes the 'orphan status' of a work, the work in question will be deemed an orphan work throughout the EU, obviating the need for multiple diligent searches. On this basis, it will be possible to make orphan works available online for cultural and educational purposes without prior authorisation unless the owner of the work puts an end to the orphan status.
This initiative builds on the Commission's 2006 Recommendation on the digitisation and online accessibility of cultural content and digital preservation 1 . Despite the Recommendation, only a handful of Member States have implemented orphan works legislation. The few existing national solutions are circumscribed by the fact that they limit online access to citizens resident in their national territories.
The creation of a legal framework to facilitate the cross-border digitisation and dissemination of orphan works in the single market is also one of the key actions identified in the Digital Agenda for Europe 2 which is part of the Europe 2020 Strategy 3 .
2. RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENTS
·Consultation of interested parties
In 2006, a High Level Expert Group on Digital Libraries was established bringing together stakeholders concerned with digitization and online accessibility of cultural material, including orphan works 4 . The Group adopted a 'Final Report on Digital Preservation, Orphan Works and Out-of-Print Works' 5 . A 'Memorandum of Understanding on Diligent Search Guidelines for Orphan Works' was signed by representatives of libraries, archives and rightholders 6 .
In 2008, the Commission's Green Paper on Copyright in the Knowledge Economy 7 sought the views of stakeholders on, inter alia, the necessity of further action in relation to orphan works 8 . On 19 October 2009, the Commission adopted the follow-up Communication on Copyright in the Knowledge Economy 9 in which it announced that it would carry out an impact assessment on how to deal with orphan works in the EU.
On 26 October 2009, the Commission held a public hearing where all interested parties presented their views on orphan works. On 10 November 2009, the Swedish Presidency and the European Parliament organised a joint hearing on orphan works and access to works for the visually impaired.
Throughout 2009-2010, the Commission services held meetings with a variety of stakeholders on a bilateral basis to discuss the relevant issues in more detail.
·Impact assessment
The impact assessment analyses six options: i do nothing, i a statutory exception to copyright, i extended collective licensing, i an orphan-specific licence granted by collecting societies, i an orphan-specific licence granted by a public body, and (6) the mutual recognition of national solutions regarding orphan works.
All policy options (except Option 1) are premised on the adoption of a directive that will require all Member States to enact specific orphan works legislation within a specified timeframe. All policy options, except Option 3, are premised on the requirement that a diligent search is necessary prior to the making available of an orphan work in an online digital library.
The statutory exception (Option 2) would avoid the burden of obtaining a copyright licence but maintain the prior diligent search. However, this option provides for less legal certainty as there is no third party certification of the diligent search.
Option 3, the model of 'extended collective licences' assumes that, once a collecting society authorises a library to make books available on a website, this licence, by virtue of a statutory extension, will cover all works in that category, including orphan works (i.e., books, films). The collecting society is considered to represent such 'outliers' independent of whether it has carried out a diligent search to identify or locate the author. The absence of a diligent search prevents an approach based on mutual recognition of the orphan work status. An extended collective licence is also normally only valid in the national territory in which the statutory presumption applies.
The specific licence for orphan works (Option 4) provides libraries and the other beneficiaries with a high level of legal certainty against damage claims by reappearing owners. This option requires both a diligent search to determine the orphan status prior to the granting of the licence and a specific licensing arrangement pertaining to orphan works.
The government licence covering orphan works (Option 5) constitutes a public certification of the diligent search and thus grants a high level of legal certainty to the digital library. But this certainty comes at a price in terms of administrative burden. This is why earlier incarnations of this system have had limited impact and are not used in relation to large scale digital library projects.
An approach based on mutual recognition of the orphan status (Option 6) allows libraries and other beneficiaries to enjoy legal certainty as to the 'orphan status' of a particular work. Mutual recognition ensures that the orphan works contained in a digital library would be available to citizens across Europe.
3. LEGAL ELEMENTS OF THE PROPOSAL
·Summary of the proposed action
The proposal deals with the diligent search necessary to identify whether a particular work is an orphan work and, once this has been established, to make it legal to make this work available to the public online under certain conditions and for specific purposes. The proposal also clarifies the application of extended collective licences to works which are potentially orphan works.
·Legal basis
Contents
·Subsidiarity principle
A legislative proposal in the form of a directive is necessary because voluntary approaches, notably Commission Recommendation 2006/585/EC of 24 August 2006, have not produced the desired result. In addition, the coexistence of uncoordinated national approaches governing orphan works in online libraries makes it difficult for a library to make orphan works available across EU Member States 10 .
·Proportionality principle
Because the orphan work problem is a major impediment to the creation of digital libraries, a coherent EU framework for online access to orphan works is the least intrusive option to achieve the desired result. All other approaches would require significantly more administrative overhead and licensing infrastructures just for orphan works.
·Choice of instruments
Proposed instrument: Directive.
Article 1 sets out the scope and subject matter of the Directive as a variety of material contained in public libraries, educational establishments, museums and archives as well as in the collections of film heritage institutions and archives of public service broadcasting organisations. In the print sector, it also covers visual works such as photographs and illustrations contained in these published works.
Article 2 contains the definition of an orphan work. The definition of an orphan work incorporates the requirement of a diligent search.
Article 3 explains how the diligent search is to be carried out by those who are permitted to use orphan works. Article 3 clarifies that a diligent search need only be carried out in the Member State of first publication of the work.
Article 4 establishes the principle of mutual recognition whereby a work deemed to be an orphan work after a diligent search carried out in accordance with Article 3 shall be considered an orphan work in all Member States.
Article 5 concerns the possibility to put an end to the orphan work status.
Article 6 enumerates the uses that the named beneficiaries are permitted to undertake with respect to orphan works (to make them available to the public, within the meaning of Article 3 of Directive 2001/29/EC, and to reproduce such works, within the meaning of Article 2 of Directive 2001/29/EC, for the purposes of achieving their public interest mission ).
Article 7 specifies how Member States may permit certain additional uses under specific conditions.
4. BUDGETARY IMPLICATION
The proposal has no implication for the Union budget.
5. OPTIONAL ELEMENTS
·European Economic Area
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