European Council of Ministers approves new orphan works Directive

After the European Parliament approved the proposal for a Directive concerning the digitization of so-called ‘orphan works’ last month, the European Council of Ministers now formally accepted the proposal as well. Member States will have to implement the new Directive into their national legislative frameworks within two years after the Directive is entered into the Official Journal of the EU. 

Orphaned works can be described as copyright protected  materials, such as books or movies, of which the copyright holder is unknown or cannot be traced. Many orphan works can be found in the archives of public bodies and institutions, such as libraries, universities and museums. However, as long as their copy right holders are unknown or untraceable, these works, may  not be re-used or be made available to the public, at least until their copyright term expires.

As of now, if certain conditions are met, the new Directive creates possibilities for these institutions to digitize and publish these works without infringing any copyright laws. An example of a condition can be found in the Directive’s requirement to perform a ‘diligent search’ to find the copyright owner before digitizing or publishing the work. What is considered to be ‘diligent’ is not specified in the Directive, however this search will have to be conducted by the designated organizations in the country where the first publication or broadcast of the work took place. In addition, the results of that search will determine the status of this work in the rest of the European Union.

The Directive also leaves room for copyright holders to claim their copyright after their work has been deemed orphaned by a Member State, introducing a fair compensation for valid claims. The level and conditions of this compensation is to be determined by Member States, although the Council Ministers said that the fact that the beneficiary institutions use the work in a non-commercial way, has to be taken into account. Additionally, Member States can decide to omit certain categories of works from the scope of this Directive.

In theory, it will be much easier for public institutions to add orphan works to their archives or use them for the public good under the new Directive. However, the interpretation of the term ‘diligent search’ might prove to be difficult in practice and the discretion given to omit certain categories could lead to fragmentation of the Directive between Member States.

FutureOfCopyright has followed the realization of this Directive closely. Previous articles concerning the prelude to this Directive can be found by clicking on the links below:

• Commission reveals results of public consultation on the draft directive on orphan works
• Scope of new EU directive on orphan works subject of debate
• European Commissioner Kroes addresses orphan works issue

Source: The Register

Written by: Nathalie Falot