Is it worth being an orphan? The EU gives some food for thought

The Kat, dispensing
client advice ...
Several times, in this Kat's legal practice to date, she has had to address her clients in words to the following effect: 'if permission is needed to use a copyright work, the fact that you canʼt identify or locate the copyright owner doesnʼt provide you with a legal defence to a claim of infringement'. She then advises that to use a copyright work without permission in these circumstances is taking a risk that the copyright owner might later on find out and commence infringement proceedings. Most clients then get frustrated and call copyright law the proverbial legal ass. However, help may now be at hand, at least in Europe, after news this week that draft EU legislation in relation to so called orphan works was informally agreed by the European Parliament and European Council.  According to the Press Release:
'Parliament's negotiating team secured provisions to make it safer and easier for public institutions such as museums and libraries to search for and use orphan works. These provisions include clear rules on compensation for right holders who come forward after a work has been placed on line and a possibility for institutions to use any revenue from its use to pay search and digitisation costs. Today, digitising an orphan work can be difficult if not impossible, since in absence of the right holder there is no way to obtain permission to do so. 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' [Merpel finds this an interesting description of the Google Book litigation; she wonders whether readers of this blog would agree with it].
To this Kat, this raised three questions: (1) how does a copyright work attain orphan status? (2) what use can one make of an orphan work? and (3) what happens if the copyright owner later shows up to un-orphan the work?

1. Attaining Orphan Status

The Kat .. looking diligent
A work will be treated as an orphan if, after a diligent search made in good faith, it was not possible to identify or locate the copyright owner. The draft legislation sets out criteria for conducting this search, but this Kat could not see any corresponding criteria for evaluating whether such a search is 'diligent'. According to the Press Release, orphan works can be 'any audiovisual or printed material, including a photograph or an illustration embedded in a book, published or broadcast in any EU country. It would also apply to works not published but nonetheless made available by institutions, provided that they could reasonably assume that the right holder would not object to this act'. This Kat cannot help but wonder how, if one cannot identify or locate a copyright owner, anyone can reasonably assume that the copyright owner would not object?

2. Use of Orphan Works

If a work attains orphan status, it can only be used for non-profit purposes. This is subject to the exception that public institutions can generate some revenue from the use of an orphan work (for instance where goods are sold in a museum shop). However, any revenue so generated could only be used to pay for the administrative costs associated with attaining orphan status.

Any work which has attained orphan status in any one Member State has the same status throughout the rest of the EU [Aha, says Merpel, will we now have the chance of orphan-shopping ...?].

3. If the copyright owner shows up ...

The copyright owner, if he shows up, will be entitled to terminate the orphan status of a work and claim an appropriate compensation for the use made out of it. However, to protect against public institutions from the risk of having to pay large sums to copyright owners who show up later, such compensation is to be calculated on a case by case basis, taking into account the actual damage done to the copyright owner's interests and the fact that the use was non-commercial [including sales in museum shops, which are presumably deemed non-commercial in respect of orphan works but commercial in respect of non-orphan works, an interesting concept]. The purpose behind such a provision is to ensure that compensation payments remain small. This Kat again notes the vague concept of 'actual damage' and wonders whether it is possible to have non-commercial use which does significant damage so as to be awarded more than a nominal payment. And if the payment is supposed to be nominal, does this mean that the legal fees to recover such payment are supposed to be equally 'small'?

4. ... and then?

Like Eleonora on her 1709 Blog post, this Kat was intrigued by the comment by Lidia Geringer de Oedenberg (right),who is steering the legislation through Parliament and led the negotiations, that the legislation on orphan works is intended to be a "first step towards harmonisation of copyright rules in the EU". The IPKat and Merpel ask what else is on the agenda?
Is it worth being an orphan? The EU gives some food for thought Is it worth being an orphan? The EU gives some food for thought Reviewed by Catherine Lee on Sunday, June 10, 2012 Rating: 5


  1. As I commented on the 1709 blog, I foresee major issues with the actual implenmentation of this, and lots of work for the courts. Who will be classed as an 'institution'? If the BBC (currently included in tne category of Public Service Broadcaster) wants to digitize some old programmes from the early days of television, are they seriously going to sell them via BBC Worldwide at a nominal price that covers just their costs? I think not. Secondly, where does something like the Google Book Project stand - clearly not a content owning institution in the sense the European Parliament mean, but how about as a collaborator with one that is?
    And what about the copyright status of the digital version? Are we going to see a similar situation to that which currently applies in the UK where photographs of public domain art works get copyright in their own right
    (AntiquesPortfolio vs Rodney Finch)? This would largely negate the social value in releasing these works from their current obscurity.
    And as Merpel astutely observes, the policy of "an orphan work in one member state is an orphan in them all" opens an entirely new cans of worms.

  2. A bit more detail about the proposal can be found in the text of the draft directive, as proposed by the Commission in May last year; and the amendments recommended by the Parliament's Legal Affairs committee (JURI) in March this year.

    For it to have gone to a trialogue there is also likely to be in place an agreed common position between the Member States, presumably signed off by ministers when the dossier was formally "noted" in December last year. Not sure whether that's been released, or extracted by any national parliament scrutiny committees; but it's likely to be close to the Commission and the Parliament without any very big issues, for the dossier to have gone to trialogue so early. Lobby groups with well-connected ears to the ground in Brussels probably know the full score.

    The outline of what will constitute a 'diligent' search are set out in Article 3. Essentially each Member State will produce a list of databases which need to be consulted; there will also be an additional central list; a search will be required in the Member State where the creator of the work was believed resident at the time.

    The types of institution in question are set out in Article 1: "publicly accessible libraries, educational establishments or museums as well as archives, film heritage institutions and public service broadcasting organizations."

    Permitted acts are set out in Article 6. The BBC could make content available through iplayer for individual non-commercial use. They could not sell it commercially to other broadcasters for re-broadcast. Not sure whether they can make clips available as archive footage at cost price for inclusion as a small part of a new commercial programme; possibly not. With respect to Google Books, it is only organisations which fall under Article 1 that are authorised to make the works available to the public. (This possibly also prevents individual non-commercial reuse -- eg including a released image of a painting on a personal website or blog).

    "An orphan in one state is an orphan in them all" follows directly from only having to do the diligent search in the one particular MS. But more relevant, perhaps, is that a work which ceases to be an orphan work in any state ceases to be an orphan work in all.

  3. Just to add that some of the Member States' working group's progress drafts and proposals are available, including a proposed draft from February, though others are (seemingly randomly) unavailable, including whatever text has actually emerged from the 3-way discussions with the Parliament and the Commission. On a cursory glance the changes coming out of the Council seem mostly to be limited to the odd nip and tweak.

    Also of potential interest may be some commentaries on the negotiations by Communia, apparently an activist group calling for more open access, putting the view that what will be permitted under the proposed Directive will be regrettably limited and circumscribed.

  4. Sorry, link to the Council documents seems to be broken.

    With luck, this link should work better. Failing that, try Advanced Search with Interinstitutional File reference 2011/0136 (COD)

  5. The peculiar position of the BBC has mysteriously escaped comment: they are the only living parent of orphans, which they have created over six decades through their approach to content management. Perhaps the IPO will demonstrate its interesting Impact Assessment skills by calculating the net present value of the savings the BBC made over those years by not fully clearing rights.


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