EU Negotiators Tentatively Agree On Plan For Orphan Works

European Union institutions this week informally agreed on how to handle “orphan works” – those whose creators cannot be found. The proposed new directive is the first legislation to come out of the European Commission (EC) intellectual property rights strategy adopted in May 2011, Internal Market and Services Commissioner Michel Barnier said on 6 June.

[Update: the modified text is now available here (pdf)]

It is the “first step towards harmonisation of copyright rules in the EU,” said European Parliament Member Lidia Geringer de Oedenberg, of Poland and the Socialists and Democrats, who authored the Legal Affairs Committee’s official response to the EC proposal.

The agreement is the result of a “trilogue” compromise between representatives from the Commission, Council and Parliament. It is expected to be approved by the EU Council and Parliament in the “coming months,” Barnier said.

The Parliament press release is here.

The measure will give European libraries, archives, film heritage institutions, public broadcasters and other organisations the appropriate legal framework to enable them to provide online, cross-border access to their collections, including orphan works, Barnier said. Greater legal security could boost funding of digitisation projects, he said.

The original EC proposal, floated in May 2011, applies to works first published or broadcast in EU member states whose rightsholders are not identified or cannot be found, the document says. It requires that organisations looking to use an orphan work make a “diligent” search for the rights owners for each work via appropriate sources for the category of work in question. Material considered an orphan work in one EU country will be considered to have the same status in all, the document says.

Permitted uses of orphan works include making the content “available” under the terms of the directive on harmonisation of certain aspects of copyright and related rights in the information society; and reproducing it for digitisation, cataloguing, preservation and similar activities, the EC document says. Under the original proposal, governments may also allow libraries and other covered entities to make commercial use of the works under certain conditions.

Commercial Uses Banned

The trilogue compromise made several key changes to the original proposal, the EC and Parliament said.

Legislative negotiators “secured provisions to make it safer and easier for public institutions … to search for and use orphan works,” the Legal Affairs Committee said.

Today, digitising an orphan work can be difficult, if not impossible, because there is no way to obtain permission in the absence of the rights owners, it said.

The new rules would protect institutions using such works from future copyright claims, avoiding lawsuits such as the US challenge to Google’s book digitisation project, it said.

The draft text strikes the proposal to allow covered entities to make commercial use of orphan works, an EC spokeswoman told Intellectual Property Watch. Instead, it inserts a new provision that allows the institutions to generate some revenue from use of the orphan works, provided it is used for search and digitisation processes, she said.

She stressed that “this is not a re-introduction of commercial uses” through the back door,” but a way to help libraries and archives recoup their digitisation costs by, for example, charging a fee to the end-user.

Another change calls for the creation of a centralised EU database, managed by the Office of Harmonization for the Internal Market, for works which have been identified as orphan after diligent search, the EC spokeswoman said. In addition, the mechanism allowing use of orphan works will now be enshrined as an exception or limitation to copyright to copyright law, she said.

Compensation for Reappearing Rightsholders

Negotiators agreed with the EC that rightsholders who reappear should be entitled to end a work’s orphan status and seek compensation, the parliamentary panel said. However, lawmakers succeeded in adding a provision to protect public institutions from having to shell out large sums to authors who show up later, it said. The revised language requires that compensation be assessed case-by-case, taking account of the actual damage to an author’s interests and the fact that usage was non-commercial, it said.

Some rightsholders worry that those seeking to use orphan works won’t try very hard to find their owners, The Register reported. Diligent searches are impossible “for all but the largest organisations,” Paul Ellis, of photographers’ rights group Stop43 was quoted as saying.

Google isn’t a diligent search because photographers put their work behind https, which the search engine doesn’t index, or take their work offline to protect its value, he said.

[Update:] Negotiators also agreed to require the EC to review the legislation one year after it enters into force to determine if publishers and protected works not currently within its scope, such as standalone photographs, should be included, said European Publishers Council Senior Advisor Ann Beck. “Many had noted the incoherence” of making publishers beneficiaries of the directive while barring them from making commercial use of orphan works, she said.

Meanwhile, civil society group Communia raised concern that agreed changes to the original proposal are not sufficient to relieve doubts about its flaws, particularly regarding its impact on the digital public domain. The Communia statement is here.