As promptly reported yesterday by the
IPKat, the Orphan Works Directive has just been published in Official Journal
of the European Union, thus becoming Directive 2012/28/EU of the European Parliament and of the Council of 25
October 2012 on certain permitted uses of orphan works. This Kat agrees with
Jeremy that there’s plenty of material for preliminary references to the Court
of Justice of the European Union, as the various provisions in the Directive look, to say
the least, open to various interpretations.
As IPKat readers will remember, the
reasons for adopting such a Directive were clarified by the Commission last
year, both in its blueprint on IP rights and the Impact Assessment accompanying the proposal. In the first document, it was pointed out that:
“Facilitating
the preservation and dissemination of Europe’s rich cultural and intellectual
heritage and encouraging the creation of European digital libraries [also through the
ARROW project] is key for the development of
the knowledge economy. Innovative licensing solutions [facilitating licensing
across the EU seems now Commission's No 1 priority: see here] are needed to
promote the seamless sharing of knowledge and culture that allow academic
institution, businesses [such as Google: see further below], researchers and private
individuals to lawfully use copyright-protected materials while compensating
authors, publishers, and other creators for the use of their works.”
What the Commission had in
mind became slightly clearer in the Impact Assessment
accompanying the proposed directive. There the Commission made no mystery of the fact that,
besides enhancing European Digital Library projects and the broader objectives relating
to a Digital Agenda for
Europe and an EU digital
single market,
by adopting such a Directive Europe could have avoided the situation resulting
from the US Google Books Settlement [as far as this Kat knows, unlike Europe, in the US no orphan works
legislation is currently being discussed], in particular the fact that in its original
formulation orphan works were to be automatically included in the scope of the
Google Books Settlement [cf the different features of the
settlement achieved a few months ago by Google and relevant French
publishers here – for the latest developments on the US
side of this saga, see IPKat report here]. Furthermore, as was pointed out in the press release
accompanying the informal deal concluded by MEPs and the Council at the beginning of the summer, in the US “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.”
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Martini. Shaken, not stirred. |
As reported by the IPKat (here, here, here ...), following the publication of the proposed directive, this has been
subject to a series of amendments, in particular in relation to the following: right to
compensation should the copyright owner show up; possibility to generate some
revenue from the use of an orphan work; notion of diligent search; how
to end the orphan work status.
Now that the final
text of the Directive has been published, this Kat has read its recitals and
provisions and has to confess that she has found some of these as including more
intrigues and mysteries than new 007 film Skyfall. In particular:
Recital 1 (see also Recital 9 and Article 1): “Publicly accessible libraries, educational establishments and museums,
as well as archives, film or audio heritage institutions and public-service
broadcasting organisations, established in the Member States, are engaged in
large-scale digitization …” [are they the only ones? There is someone else that
is equally engaged in large-scale digitisation of works and is missing from here.
Indeed, if you look for the fairly neutral word ‘businesses’, you will find it nowhere
in the text of the Directive. Does this mean that, somewhat in contrast with what was stated
by the Commission to justify the adoption of the Directive, businesses like
Google will not be able to benefit directly from the Directive but only through previous orphan work status determination by the organisations listed therein?]
Recital 5: “Copyright is the economic foundation for the creative industry, since
it stimulates innovation, creation, investment and production. Mass
digitisation and dissemination of works is therefore [what is the
logical link?] a means of protecting Europe's
cultural heritage. Copyright is an important tool for ensuring that the creative
sector is rewarded for its work.” [Merpel is slightly appalled at the way this
recital is written and has no clue about its meaning]
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"I tried but the line was busy": Benedict is confident that this will suffice as a diligent search |
Recital 6: [Should you have any doubts, please be informed that] “The
rightholders' exclusive rights of reproduction of their works and other
protected subject-matter and of making them available to the public, as
harmonised under Directive 2001/29/EC of the European Parliament and of the
Council of 22 May 2001 on the harmonisation of certain aspects of copyright and
related rights in the information society [the InfoSoc Directive], necessitate the prior consent of rightholders
to the digitisation and the making available to the public of a work or other
protected subject-matter.”
Recital 12: “For
reasons of international comity [Merpel is not sure this is the only reason], this Directive should apply only to works
and phonograms that are first published in the territory of a Member State or,
in the absence of publication, first broadcast in the territory of a Member
State or, in the absence of publication or broadcast, made publicly accessible
by the beneficiaries of this Directive with the consent of the rightholders. In
the latter case, this Directive should only apply provided that it is
reasonable to assume [how can you prove this?] that the rightholders would not oppose the use allowed by this
Directive.”
Recitals 17 and 18 (and
Article 2): “There can be several
rightholders in respect of a particular work or phonogram, and works and phonograms
can themselves include other works or protected subject-matter. This Directive should
not affect the rights of identified and located rightholders. If at least one
rightholder has been identified and located, a work or phonogram should not be
considered an orphan work … Rightholders should be entitled to put an end to
the orphan work status in the event that they come forward to claim their
rights in the work or other protected subject-matter …” [this looks sensible, says Merpel. As IPKat readers will
remember, there was a time when the idea was that “A work shall cease to
be an orphan work only if all the rightholders to that work are identified and
located.”]
Recital 19: “If a work or phonogram has been wrongly found to be an orphan
work, following a search which was not diligent, the remedies for copyright
infringement in Member States' legislation, provided for in accordance with the
relevant national provisions and Union law, remain available.” [making insufficiently diligent search akin to copyright
infringement as far as possible remedies are concerned will probably be a good
reason for potential defendants to keep litigating vigorously until the CJEU thoroughly clarifies the criteria for considering a search as diligent]
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Clear case of diligent search in which the rightholder was known but could not be located |
Recital 20 and Article 6: “In order to promote learning and the
dissemination of culture, Member States should provide for an exception or limitation
in addition to those provided for in Article 5 of Directive 2001/29/EC …” [but isn’t the Commission committed to review the set of
exceptions and limitations envisaged in the InfoSoc Directive shortly?]
Article 2(1): “A work
or a phonogram shall be considered an orphan work if none of the rightholders in that work or phonogram is identified
or, even if one or more of them is identified, none is located …” [is the latter a
likely scenario? Merpel finds it difficult to believe that a search can be
considered diligent if one knows who the copyright owner is]
Article 6(2): “The
organisations … shall use an orphan work … only in order to achieve aims related
to their public-interest missions, in particular the preservation of, the
restoration of [this is tricky, says Merpel. Restoration may raise moral
rights issues, and in some Member States moral rights enjoy high (and somewhere perpetual)
protection. So, is it advisable to proceed with restoration of orphan works, including those whose
copyright owners are known but cannot be located?], and the provision of cultural and
educational access to, works and phonograms contained in their collection …”
Article 6(5): “Member
States shall provide that a fair compensation is due to rightholders that put
an end to the orphan work status of their works or other protected subject-matter
for the use that has been made … Member States shall be free to determine the
circumstances under which the payment of such compensation may be organised.
The level of the compensation shall be determined, within the limits imposed by
Union law, by the law of the Member State in which the organisation which uses
the orphan work in question is established.” [would have not been better if the Directive had
set some parameters to this end? Otherwise there may be the risk of race-to-the-bottom scenarios, by making
certain Member States more appealing (as well as less risky because cheaper)
than others for reasons of orphan work status determination and possible litigation]
I agree that there are some elements of the Directive which may need clarification by the CJEU, but we have to wait for the enabling legislation from the Member States first before having a true picture of where the loopholes are likely to be. There is quite a lot of appreciative margin built into the Directive.
ReplyDeleteI'm not sure why Merpel is perplexed by Article 2(1). Surely during the 70 year period following the death of the author, the new rights owner may well be identified (for instance in a will) but unlocatable through the sort of sources identified in the Annex to the Directive because those sources are largely concerned with recording authors rather than their heirs. I imagine that the collecting societies would have a good idea of how prevalent this scenario is.