Until October 2012 there was no legal framework regarding the status of so- called orphan works at the EU level. Despite legislative efforts undertaken by few Member States, the satisfactory solution was far from being reached. The situation drastically changed when a number of entities, such as public libraries, universities and research institutions brought the status of the above works to the spotlight. These institutions were facing problems when they encountered the issue of copyrights while they decided to digitalize their resources.
Orphan works are the works of art, books, recordings and other copyright materials that are thought to be in copyright but whose owner is unknown or it is impossible to trace him. The issues connected with orphan works may even endure after they had lost their copyright protected status. Despite the fact that, for example, an original painting may be out of copyright, its images such as photographs of same may still enjoy copyright protection even though the author may be untraceable.
Why is it so troublesome?
The best word to answer this question is uncertainty. Public libraries, research institutions and commercial entities risk legal action directed against them should they proceed to e.g. digitalize a work of art, while in the meantime the copyright holder could demand cessation of the above use of the copyrighted material. That uncertainty inhibits creative exploitation of Europe’s cultural heritage, which in turn may lead to waste of creative potential of people who would like to make use of orphan works. Undoubtedly, it leads also to a loss of potential income derived from the exploitation of the aforementioned works.
It is important to note that in all EU countries in light of the Berne Convention[i] copyright protection is automatic starting right from the moment that a work is written down. Furthermore, there are no any formal requirements of registration or notification to any authority in order to commence copyright-protected status. It becomes especially problematic in the digital era. The advent of Internet has created almost limitless possibilities of exploitation of works which are in copyright. These works can be very easily digitalized and re-used in various ways on-line. With ever increasing number of copyrighted material, it becomes more and more difficult to follow their authorship as well as search for an actual copyright holder. Libraries, universities and research institutions are in possession of great number of works, both in copyright and in the public domain. For example, according to the study conducted by the British Library that covered all creative works such as manuscripts, maps, newspapers, magazines, prints and drawings, music scores, and patents, sound recordings, stamps, approximately 40% of the collection was found to be orphan works. Note that the whole collection of the British Library contains 150 million items. It means that there are millions of items considered to be orphan works.[ii]
Solution at the EU level
On 25 October 2012 the European Parliament and the Council adopted Directive 2012/28/EU on certain permitted uses of orphan works. The Directive will provide Europe’s libraries, archives, film heritage institutions, public broadcasters and other organisations acting in the public interest with the appropriate legal framework to provide on-line cross-border access to orphan works contained in their collections. The Directive highlights the importance of copyright using the following wording: 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 a means of protecting Europe’s cultural heritage. Copyright is an important tool for ensuring that the creative sector is rewarded for its work.[iii] On the other hand, the Directive also recognizes that very strict copyright regime may lead to unacceptable results- i.e. compromising the aim of protecting Europe’s cultural heritage and inhibiting creative use of the above works[iv]
Article 1 of the Directive enumerates institutions which are entitled to certain uses made of orphan works. The list includes: publicly accessible libraries, educational establishments, museums and archive, film or audio heritage institutions, public-service broadcasting organisations, established in the Member States. It also sets out the categories of works that may be used in certain permitted ways:
1) published written works, that are first published in a Member State, held in the above institutions;
2) cinematographic or audiovisual works and phonograms (sound recordings), held in the above institutions:
3) works of the kinds mentioned in (a) and (b) above that are unpublished, which have been publicly accessible in the above institutions with the consent of the right holders, provided that it is reasonable to assume that the right holders would not oppose the use of the work according to the permitted uses of the work[v]
Article 2 contains familiar definition of the orphan work that has already been presented in the introductory part.
Article 3 is the cornerstone of the whole directive. In order to determine whether a work constitutes an orphan work it introduces a requirement of diligent search. It should be carried out in good faith in respect of each work by consulting the appropriate sources. A diligent search shall be carried out in the Member State of first publication, and prior to the use of the work.
The wording of this provision is very general and problematic. Therefore, in a number of circumstances it will be difficult for the above institutions to satisfy this requirement -especially in the absence of case law relating to that matter. In reality it is barely possible to elaborate a single standard of diligent search that would fit all categories and forms of works. The Directive also introduces a burdensome requirement of diligent searches record keeping .On the other hand, it introduces mutual recognition rule, which should be considered a positive step.
Despite its drawbacks the Directive may be considered as a step forward in tackling orphan works problem. However, it must be noted that the Directive still leaves much room for ambiguity. Diligent search requirement is framed in very general, broad terms so that it would be difficult in actual circumstances to answer the question what exactly constitutes a diligent search and whether a good faith requirement would be satisfied. It may be argued that the EU missed a chance of tackling the problem of orphan works and provided an incomplete piece of legislation that does not solve all important problems.
It remains to be seen how the case law concerning the Directive will develop. For now, it is important to highlight that there still exists much uncertainty regarding orphan works and their status in the age of massive digitalization of copyright material.
Author: Piotr Lisak
For further information, please contact Dr Christian Farrigia