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    EU Negotiators Tentatively Agree On Plan For Orphan Works

    Published on 9 June 2012 @ 8:19 pm

    By for Intellectual Property Watch

    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.

    Dugie Standeford may be reached at info@ip-watch.ch.

     

    Comments

    1. Intersect Alert June 10, 2012 | SLA San Francisco Bay Region Chapter says:

      [...] 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. . .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.” http://www.ip-watch.org/2012/06/09/eu-negotiators-tentatively-agree-on-plan-for-orphan-works/ [...]

    2. European “Informal Deal” on Orphan Works says:

      [...] Dugie Standeford for Intellectual Property Watch. “EU Negotiators Tentatively Agree On Plan Fo… [...]


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    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
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