Scope of new EU directive on orphan works subject of debate

The European Commission has opened consultation rounds on their new draft directive on orphan works. This new chapter to European copyright law is proposed to deal with the exploitation of creative works of which the author or rightful copyright owner cannot be established. 

This category of works is called “orphan”, because in many cases the legal owners have died generations ago. Although the use of such work is possible, it entails the risk that some distant reative of the author suddenly comes along and claims the righs to the orphan work. Also, the EU wants to make digital archives of historic material possible.

In the past weeks, there has been some debate on the purposes and, particularly, the scope of the directive. The questions of scope emerge at three levels; i.e., the type of creative works that the directive applies to, the type of use of the orphan work envisaged and, questions of scope with regard to the institutions or sector this law should apply to. Two interesting pieces of feedback in and around the public consultation came from a Czech government official and from the Center for Picture Industry CEPIC.

CEPIC regrets that photography is not mentioned in the directive. This may mean that the future directive would not apply to historical picture archives. CEPIC federates nearly a thousand picture agencies and photo libraries in 20 countries across Europe, both within and outside the European Union. CEPIC also finds that the primary aim of the directive should be to protect cultural heritage instead of business interests.

According to CEPIC, the directive should concentrate on its original goal which is mass digitization of public libraries assets. “We are not in favour of commercial usage by public institutions at special conditions.” Furthermore they said: “There should be no discrimination between works or authors. Visual authors should get the same level of protection as other authors.”

Adela Faladova, deputy head of the Czech Culture Ministry's copyright section agrees with CEPIC that the directive should also include photographs and even plastic art works, however she has no objection against commercial use of orphaned material. She told Czech News Agency CTK that “The directive's scope should be extended as much as possible.” 

Faladova explained to CTK that she deems it problematic to release orphan works only on the internet (or online media - ed.) since it prevents their broadcast by public television and radio. In connection with the goal of cultural works' digitisation, the EC directive should be extended to apply to other users aside from libraries, museums, archives, educational facilities, film institutes and public broadcasters, including commercial ones.” To conclude, Faladova reiterated that, in general, the Czech Republic supports the draft directive.

Sources: CTK; Prague Monitor; CEPIC;  European Commission: draft “Directive on certain permitted uses of orphan works” - COM(2011) 289 final

Read more on orphan works here at Future of Copyright:

- EU Commissioner addresses orphan works issue

- Hargreaves committee presents view on the future of copyright in the UK