Wider access to copyright material — orphan works

SUMMARY OF:

Directive 2012/28/EU — certain permitted uses of orphan works

WHAT IS THE AIM OF THIS DIRECTIVE?

It is designed to promote the digitisation of and lawful intra-EU online access to orphan works* contained in the collections of libraries, educational establishments, museums, archives, audiovisual heritage institutions and public service broadcasting organisations.

These organisations have a public interest mission to:

preserve,
restore,
reproduce, and
provide online access to their collections, for cultural and educational reasons.

After completing the diligent search* these organisations will be permitted to use orphan works for these purposes.

KEY POINTS

Scope

The directive applies to works protected by copyright that are first published or, in the absence of publication, broadcast (shown on television or online, i.e. visual media, rather than written media) in a EU country.

The directive applies to several categories of works:

published books, newspapers, magazines or other writings;
works embedded or incorporated in the above categories;
cinematographic or audiovisual works and phonograms.

Status of orphan work

The organisations covered by the directive must ensure that a diligent search for rightsholders is carried out in good faith by consulting the appropriate sources to verify the orphan work status.
The directive indicates that EU countries must determine the appropriate sources and include a list of sources that should at least be consulted when performing a diligent search.
Material that is considered as orphaned in one EU country has the same status in all other EU countries.
In an event if rightsholder of what is considered to be an orphan work reappears, the directive envisages the possibility of putting an end to the orphan work status and receiving fair compensation.

Database

A single, Europe-wide, publicly accessible online database will be set up, containing information on orphan works, including:

results of searches for rightsholders;
use made of orphan works by organisations;
any changes in the orphan work status of works used.

This ensures that both the organisations carrying out the searches and the rightsholders can find information about identification and use of orphan works.

Permitted uses

Organisations covered by the directive may use an orphan work only to achieve aims related to their public-interest missions:

to make the orphan work available to the public;
to reproduce the orphan work for the purposes of digitisation, making available, indexing, cataloguing, preservation or restoration.

The organisations may generate revenues in the course of such uses, for the exclusive purpose of covering their costs of digitising orphan works and making them available to the public.

FROM WHEN DOES THE DIRECTIVE APPLY?

The directive has applied since 29 October 2014 and it had to become law in the EU countries on the same day.

BACKGROUND

Orphan works database (EUIPO Observatory).

KEY TERMS

Orphan Works: works like books, newspaper and magazine articles and films that are still protected by copyright but whose authors or other righstholders are not known or cannot be located or contacted to obtain copyright permissions.

Diligent search: thorough search aiming to identify and/or locate the author of copyright materials or other rightsholders.

MAIN DOCUMENT

Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works (OJ L 299, 27.10.2012, pp. 5-12)