“Orphan” works: A deal completed!

Today we have reached an agreement with Council representatives on a legislation act for the so-called “orphan works”.

In practical terms this means that a photo, a film or a poem covered by copyright, but whose right holder is not identifiable, can now be publicly available across the EU.

This legislation would allow everyone to access and push forward the project of makingEurope’s cultural heritage available online.

Being the Rapporteur of this directive and leading the negotiations with the Council, I am very satisfied by the final outcome of the text. I believe the regulation will promote culture, and make it possible to unveil some hidden treasures from achieves around the EU.

Moreover I view this directive as a first step towards harmonizing copyright rules in the EU.

In the negotiations with representatives of the Council we managed to secure provisions that will make it safer and easier for public institutions (like museums and libraries) to search and use orphan works, particularly through clear rules on compensation and a possibility to pay off part of the expenses occurred in the process.

Currently, it’s difficult if not impossible to digitising an orphan work whose right holder cannot be found. The new rules would protect institutions using orphan works from future copyright infringement claims, and thus avoid court cases like that in the US, in which a Google project to digitise and share all kinds of books, including orphan works, was blocked on the grounds that the orphan works question should be settled by legislation, not private agreements. 

In the finale text agreed upon earlier today a work would be deemed to be orphan if, after a “diligent” search made in a good faith, it was impossible to identify or locate the copyright holder. The draft legislation lays down criteria for carrying out the search.

Works granted orphan status would be then made public, through digitization and only for non-profit purposes. The principle of mutual recognition will apply and a work considered orphan in a singleMemberStatewould also be considered as such throughout the EU.

The text also refers to the right holder’s entitlement to put an end to the orphan status of a work, at any time, and claim an appropriate compensation for the use made out of it.

Nevertheless, we have also ensured a provision in the text that will protect public institutions from paying huge amount of money in case the work seizes to be orphan. This provision requires that compensation be made on an individual case taking into consideration the actual damage occurred by the author and the non-commercial use of it.

Together with Council representatives we have also agreed on a proposal to introduce a new article in the draft legislation to allow public institutions to generate some revenue from the use of an orphan work (e.g. goods sold in a museum shop). The whole amount of the gain would have to be used to pay for the search and the digitalisation process.

The concluded text still needs a final approval from the Committee on Legal Affairs, Parliament as a whole and in the Council.

With the completion of nine months of working on the act, I believe our work is significant and will benefited with EU citizens, as well as with EU’s copyrighting system.

Greetings from the European Parliament

Lidia Geringer de Oedenberg

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