The EU Orphan Works Directive 2012

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THE ORPHAN WORKS DIRECTIVE

Uma Suthersanen and Maria Mercedes Frabboni

DIRECTIVE 2012/28/EU

of the European Parliament and of the Council of 25 October 2012on certain permitted uses of orphan works

[2012] OJ L 299/5

CHAPTER I: OBJECTIVE AND SCOPE

ARTICLE 1: SUBJECT-MATTER AND SCOPE

I. Commentary 13.011. Rationale and objectives 13.01

A. Policy Background 13.01B Specific objectives 13.04

2. Beneficiaries 13.05Publicly accessible institutions –libraries, educational, museumand archival institutions 13.06B. Film/audio heritage and public

service broadcasters 13.08C. Public interest missions 13.09

3. Subject matter 13.101. Print works – writings, images

and embedded works/subjectmatter 13.11

2. Cinematographic andaudiovisual works,phonograms and broadcasts 131.3

3. Stand-alone photographs andimages 13.17

4. Place of publication andunpublished works 13.20

4. Collective management and theMemorandum of Understandingon out-of-commerce works 13.21

ARTICLE 2: ORPHAN WORKS

I. Commentary 13.251. Defining an orphan work 13.25

A. Policy background 13.25

B. ‘Orphan work’ in the EUcontext 13.26

C. Effect on anonymous andpseudonymous works 13.28

2. Multiple right holders 13.29A. Multiple authors and owners 13.29B. Duration of the orphan work

status 13.30

ARTICLE 3: DILIGENT SEARCH

I. Commentary 13.311. Summary of ‘diligent search’ rules 13.312. ‘Diligent search’ and ‘good faith’ 13.333. ‘Appropriate sources’ 13.344. Extent and effect of diligent search 13.375. Recordation and public register 13.39

A. What must be recorded 13.39B. OHIM Orphan Works Database 13.40C. Background and critique of

a Central EU Database/Register 13.42

ARTICLE 4: MUTUAL RECOGNITION OFORPHAN WORK STATUS

I. Commentary 13.47

ARTICLE 5: END OF ORPHAN WORK STATUS

I. Commentary 13.48

ARTICLE 6: PERMITTED USES OFORPHAN WORKS

I. Commentary 13.501. Scope of permitted use 13.502. Beneficiaries 13.51

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A. Nature of public interestorganisation 13.51

B. Nature of use 13.523. Compensation to right holders 13.54

ARTICLE 7: CONTINUED APPLICATION OFOTHER LEGAL PROVISIONS

I. Commentary 13.56

ARTICLE 8: APPLICATION IN TIME

I. Commentary 13.59

ARTICLE 9: TRANSPOSITION

I. Commentary 13.61

ARTICLE 10: REVIEW CLAUSE

I. Commentary 13.62

ARTICLE 11: ENTRY INTO FORCE

ARTICLE 12: ADDRESSEES

CHAPTER IOBJECTIVE AND SCOPE

ARTICLE 1SUBJECT-MATTER AND SCOPE

1. This Directive concerns certain uses made of orphan works by publiclyaccessible libraries, educational establishments and museums, as wellas by archives, film or audio heritage institutions and public-servicebroadcasting organizations, established in the Member States, in orderto achieve aims related to their public-interest missions.

2. This Directive applies to:(a) works published in the form of books, journals, newspapers,

magazines or other writings contained in the collections of pub-licly accessible libraries, educational establishments or museumsas well as in the collections of archives or of film or audio heritageinstitutions;

(b) cinematographic or audiovisual works and phonograms con-tained in the collections of publicly accessible libraries, educa-tional establishments or museums as well as in the collections ofarchives or of film or audio heritage institutions; and

(c) cinematographic or audiovisual works and phonograms producedby public-service broadcasting organizations up to and including31 December 2002 and contained in their archives which areprotected by copyright or related rights and which are first pub-lished in a Member State or, in the absence of publication, firstbroadcast in a Member State.

3. This Directive also applies to works and phonograms referred to inparagraph 2 which have never been published or broadcast but whichhave been made publicly accessible by the organizations referred to inparagraph 1 with the consent of the rightholders, provided that it is

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reasonable to assume that the rightholders would not oppose the usesreferred to in Article 6. Member States may limit the application of thisparagraph to works and phonograms which have been deposited withthose organizations before 29 October 2014.

4. This Directive shall also apply to works and other protected subject-matter that are embedded or incorporated in, or constitute an integralpart of, the works or phonograms referred to in paragraphs 2 and 3.

5. This Directive does not interfere with any arrangements concerningthe management of rights at national level.

I. COMMENTARY

1. Rationale and objectives

A. Policy background

This chapter analyses Directive 2012/28/EU of the European Parliament andof the Council of 25 October 2012 on certain permitted uses of orphan works.1This Directive is the result of a legislative process that addresses the legalsituation where authors or rights holders of copyright protected works cannotbe identified or located. It does this by establishing the conditions under whichthe orphan work status can be declared throughout the EU region, and underwhich such works can legitimately be reproduced and made available online.

Without lengthy consideration of the actual risk and commercial consequencesfor a cultural heritage institution to be sued by an author who has found out thathis work was considered to be an orphan,2 the EU accepted that ‘soft-law’initiatives such as the 2006 Recommendation on the digitisation and onlineaccessibility of cultural content and preservation were not sufficient to addressthe orphan works issue in an appropriate manner. Despite the Recommenda-tion, only a few Member States have implemented orphan works legislation.Moreover, developments at the national level were circumscribed by the factthat they were not capable of addressing the issues posed by the onlineenvironment as they limited online access to citizens resident in their national

1 Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitteduses of orphan works O J L299/5 (Dir. 2012/28 on certain permitted uses of orphan works).

2 On risk considerations for the use of orphan works, see S. van Gompel, ‘The orphan works chimera and how todefeat it: A view from across the Atlantic’ (2013) Berkeley Technology Law Journal, 3, 1347-–78.


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territories. This was ignoring the cultural and educational potential offered bycross-border access of content.3

The general rationale of the Directive is to address the concern expressed invarious quarters regarding the establishment of digital libraries, and the relatedaccessibility of cultural materials, including orphan works.4 One of the primaryaims of the Directive, thus, is to create a legal framework to ensure lawful,cross-border online access to orphan works,5 enabling institutions to proceedwith their digitisation and dissemination activities, with a minimal risk ofliability. This legal framework is also part of the wider Digital Agenda forEurope, where the specific problem of determining orphan work status ishighlighted.6

B. Specific objectives

Article 1 re-frames the general objective in a more specific and limited manner,namely the regulation of the use of certain types of orphan works by certaintypes of institutions in pursuance of their public interest missions. Thus, thisDirective does not address the wider issue of ‘out-of-commerce’ works or use oforphan works by commercial institutions. Indeed, the Preamble clearly notesthat the Directive’s framework will not prejudice specific Member States’solutions to address this issue. The Preamble also acknowledges the Memoran-dum of Understanding 2011, which attempts to adopt key guidelines in relationto ‘out-of-commerce’ works, employing the approach of voluntary collectivemanagement.7 This is discussed further below. Instead, the Directive focuses ontwo fundamental aspects of regulation in this area: laying down the rules todetermine orphan work status within the EU, and permitted uses of such works.

2. Beneficiaries

Article 1(1) enumerates the type of institutions that the directive is applicableto namely the following ‘publicly accessible’ institutions:

3 European Commission, ‘Impact assessment on the cross-border online access to orphan works’ SEC(2011)615 final, 12 <http://ec.europa.eu/internal_market/copyright/docs/orphan-works/impact-assessment_en.pdf>;(European Commission Impact Assessment 2011).

4 Directive 2012/28 on certain permitted uses of orphan works, Recitals 2 and 3.5 European Commission’s Explanatory Memorandum to proposal for a directive of the European Parliament and

of the Council on certain permitted uses of orphan works, COM(2011) 289 final, 2011/0136 (COD),1; (ECExplanatory Memorandum 2011).

6 Directive 2012/28 on certain permitted uses of orphan works, Recital 3; European Commission’s Communi-cation, ‘A Digital Agenda for Europe’ COM(2010) 245 final/2, 9; (EC Communication 2010).

7 ‘Memorandum of Understanding: Key Principles on the Digitisation and Making Available of Out-of-Commerce Works’ (2011)

<http://ec.europa.eu/internal_market/copyright/docs/copyright-infso/20110920-mou_en.pdf>; (Memo-randum of Understanding 2011).


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+ libraries+ educational establishments+ museums+ archives+ film or audio heritage institutions, and+ public service broadcasters.

A. Publicly accessible institutions – libraries, educational, museum and archivalinstitutions

There is no criterion as to the nature or constitution of the institution. Neitheris the phrase ‘publicly accessible’ defined although the genesis of the phrase canbe traced back to Article 5(2)(c), Directive 2001/29/EC where an exemption isallowed in relation to specific acts of reproduction made by ‘publicly accessiblelibraries, educational establishments or museums, or by archives, which are notfor direct or indirect economic or commercial advantage’.8

It is arguable that the orphan works Directive applies to both private and publicinstitutions, and that the directive’s focus is on non-profit and/or non-commercial usage.9 Indeed, as discussed further below, an institution may usean orphan work to generate revenue in pursuit of public interest aims. It isfurther arguable, that private institutions which engage in commercial activitiesare not automatically disqualified as beneficiaries of the Directive if it can beshown that such organisations include publicly accessible, non-profit libraries,museums, etc, units within their organisations (for e.g. a corporation that makesits archival materials publicly accessible and for non-profit, education orcharitable purposes). Conversely, mass digitisation or dissemination activities ofa public state-sponsored museum may not necessarily fall within the Directive’sexceptions should such a museum exploit orphan works for commercial pur-poses, beyond their public interest mission.10 It is also clearly implicit that theDirective does not allow individual users to benefit from its safe harbours.

8 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation ofcertain aspects of copyright and related rights in the information society OJ L 167/10 (Dir. 2001/29 on theinformation society).

9 Indeed, this is very clear when one peruses the original Commission’s Proposal for a Directive, whereby theprevious recitals 21 and 22 expressly allow Member States to permit the use of orphan works for ‘purposeswhich go beyond the public interest missions of organisations’; in such cases, the proposal stated that the ‘rightsand legitimate interests of rightholders should be protected’, through compensation – EC ExplanatoryMemorandum 2011, 9.

10 See discussion in relation to Dir. 2012/28 on certain permitted uses of orphan works, Recitals 20, 21, Art. 6,below.


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B. Film/audio heritage and public service broadcasters

A stricter threshold is laid down for film/audio heritage institutions and publicservice broadcasters. The former should be organisations designated by Mem-ber States to ‘collect, catalogue, preserve and restore films and other audiovisualworks or phonograms forming part of their cultural heritage’.11 The latterwould appear to only cover ‘broadcasters with a public service remit as con-ferred, defined and organised by each Member State’.12 It is arguable that thehigher threshold ostensibly bars institutions and broadcasters which have amore private and/or commercial remit. The conditions that must be satisfiedbefore an entity is declared to be a ‘cultural heritage’ institution or a ‘publicservice’ broadcaster.

C. Public interest missions

A crucial principle within this Directive is its application to institutions with apublic interest mission. There are no express guidelines within the substantiveprovisions of the Directive as to what factors should be taken into account todetermine whether a mission constitutes a ‘public interest’ mission. Someguidelines may be implicit within the recitals. For example, Recital 20 discussesthe extent of permitted uses and specifically refers to public interest missions asincluding ‘the preservation of, the restoration of, and the provision of culturaland educational access to, their collections, including their digital collections’.Similarly, the public interest mission of film or audio heritage institutionscovers collection, cataloguing, preservation and restoration of films or phono-grams.13

3. Subject matter

Article 1(2) enumerates exhaustively four types of orphan works that areregulated under this directive: writings, cinematographic or audiovisual works,phonograms and embedded protected works/subject matter.

A. Print works – writings, images and embedded works/subject-matter

This first category appears to refer exclusively to ‘works’ which are published inthe print sector, including the electronic print sector.14 The category refers

11 Directive 2012/28, Recital 20.12 Ibid. With reference to the acquis, see for example EC Communication on the Application of State Aid Rules

to public service broadcasting (2001), OJ C 320/5, at 11 <http://ec.europa.eu/competition/state_aid/legislation/broadcasting_communication_en.pdf>. This reflects the content of the Protocol to the Treaty ofAmsterdam on the system of public broadcasting in the Member States (1997) OJ C 340/109.

13 Directive 2012/28, Recital 20.14 EC Explanatory Memorandum 2011, 4; and European Commission Press Release on orphan works directive,

MEMO/12/743, published 4/10/2012.


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specifically to books, journals, newspapers, and magazines, and ends with arather broad and sweeping reference to ‘other writings’. It is arguable that thisphrase is overarching enough to include a diverse range of published materialsincluding electronic databases, computer programs, photographs, design draw-ings, and prints.15 One can stretch the argument that the Directive’s referenceto ‘writings’ should also cover works, which comprise both textual and graphicmaterials.16

However, it is submitted that the term ‘other writings’ within Article 1(2)(a)must be restricted ejusdem generis to printed works. Moreover, Article 1(4) ofthe Directive refers to a separate category of orphan works that will include‘works and other protected subject-matter’ that are embedded in, or incorpor-ated in, or constitute an integral part of, the works referred to in Article 1(2).Thus, an artistic work, such as a photograph or a cartoon illustration or apainting, which is published in a printed book would come under the aegis ofthe Directive. Similarly, a photograph that is published as a postcard or as partof a catalogue could also be within the Directive’s ambit. This argument isstrengthened with reference to the Directive’s Annex and the ExplanatoryMemorandum of the Directive. The Annex (discussed below) refers to sourcesto be referenced in relation to diligent searches. It refers to visual works asincluding ‘fine art, photography, illustration, design, architecture, sketches ofthe latter works and other such works that are contained in books, journals,newspapers and magazines or other works’.17 This is analogous to the Explana-tory Memorandum which defines the print sector as covering ‘visual works suchas photographs and illustrations contained in these published works’.18

B. Cinematographic and audiovisual works, phonograms and broadcasts

The next categories of works are films, sound recordings, and broadcasts. Someobservations and concerns can be made as to the extent of the coverage. First,the inclusion of cinematographic and audiovisual works would cover all record-ings of moving images, including slide presentations and video games. Sec-ondly, where such works are produced by public service broadcastingorganisations, three further conditions apply. The Directive will only apply tosuch works and phonograms that have been produced before 31 December

15 The UK copyright legislation, for instance, defines a ‘literary work’ as ‘any work, other than a dramatic ormusical work, which is written, spoken or sung’, including a table or compilation, a computer program,preparatory design material for a computer program, and a database’, Copyright Designs and Patents Act 1988,s 3.

16 For example, ‘writings’ is defined under the UK law as including ‘any form of notation or code, whether by handor otherwise and regardless of the method by which, or medium in or on which, it is recorded’, Copyright,Designs and Patents Act 1988, s 178.

17 Annex to Dir. 2012/28, 3.18 EC Explanatory Memorandum 2011, 4.


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2002, and have been produced or commissioned by public service broadcastingorganisations, and first published or broadcast in a Member State.

The rationale of the cut-off date is clearly to limit the phenomenon of orphanworks within the public broadcaster’s collections.19

It is not immediately clear, however, why the Directive’s application has beenlimited to subject matter which has been commissioned or produced by thepublic organisations. Presumably this provision seeks to limit the Directive’ssafe harbours to cinematographic/audiovisual works and phonograms whichare within the exploitation mandate of the public service broadcasting organ-isations. Thus, the recitals clearly state that works and phonograms which havebeen co-produced with other public service organisations, or which have beenspecifically commissioned by public service broadcasters, would fall within theDirective’s ambit. Conversely, such works and phonograms that have not beenproduced or commissioned by these organisations would fall outside the ambitof the Directive, despite the existence of a licensing agreement authorisinguse.20

Paradoxically, this may mean that certain orphan films or phonograms, withinthe organisation’s archival collection, will not be classified as EU orphan works,despite the fact that these films or phonograms may be the only physical copiesin existence, or may have been specifically donated to the organisation forpreservation, etc. It is debatable, perhaps, that where the public service broad-casting organisation can show that it has obtained either a full copyrightassignment or an exclusive licence to exploit for the work or phonogram,especially for uses which come within Article 6 of the Directive, then suchworks or phonograms will come within the aegis of this legislation.

C. Stand-alone photographs and images

Can one argue that the Directive will apply to an artistic work per se, namely awork that is not print-bound but stands alone as a painting or a discretephotograph? What if such a work is ‘published’ within an image library ordatabase?21 Arguably, it can appear incongruous that single artistic works suchas individual photographs or prints which reside within image collections

19 The establishment of a cut-off date was opposed in the process of adoption of the text proposed by theCommission. See for example European Parliament Committee on Legal Affairs, ‘Amendments 49–170 Draftreport Lidia Joanna Geringer de Oedenberg on the proposal for a Directive of the European Parliament and ofthe Council on certain permitted uses of orphan works (PE472.338v01–00)’ (28.10.2011).

20 Directive 2012/28, Recitals 10 and 11.21 The Annex to Dir. 2012/28, at 3(c), refers to image databases as a possible source of information in relation to

images which are embedded or contained in print works.


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within cultural heritage institutions would be deliberately left out of consider-ation, and yet individual printed works, films, audio-visual works or phono-grams would be regulated under this Directive.

Nevertheless, it is difficult to argue that the Directive will extend to stand-aloneimages. This is partly due to the remit of the European Commission’s futurereview of the Directive which includes the possibility of extending the Directiveto ‘works or other protected subject-matter not currently included in its scope,and in particular stand-alone photographs and other images’.22

This is further supported if one studies the Commission’s Impact Assessmentreport whereby it is urged that the Directive’s focus be on the print sector asopposed to the image and photography sectors. The urgent need was to addressconcerns in relation to current commercial digitisation operations (such asGoogle’s digital library) which tended to focus on the print sector, becauseprinted works (unlike other media such as films or photographs) can be easilyindexed by its search engine.23

D. Place of publication and unpublished works

The Recitals clearly state that for reasons of international comity, this Directiveonly applies to works and phonograms that are first published or broadcast inthe territory of a Member State.24 In the absence of publication or broadcast,then the Directive will also apply to such works or phonograms, which havebeen made publicly accessible by the beneficiaries of the Directive.25 Thisapproach can be invoked only in circumstances when a reasonable assumptioncan be made that the right holder has provided consent to such beneficiaries forthe use they intend to make. Therefore, it introduces an element of flexibility,but its determination may be highly uncertain.26 Accordingly, this could behelpful in cases involving obscure early publications, which have already beenmade publicly accessible within the beneficiaries’ collections. What may proveto be less easy to ascertain is the extra condition placed on such unpublishedmaterials before the Directive can apply. There are no guidelines as to how aninstitution will be able to prove that unidentifiable or unlocatable right holdersmay or may not have authorised specific uses, especially if one is dealing withworks created in the pre-digital era. Such guideline may be useful to beneficiary

22 Directive 2012/28, Art. 10.23 European Commission Impact Assessment 2011, 6–7.24 Directive 2012/28 on certain permitted uses of orphan works, Recital 12.25 On the public interests consideration concerning unpublished works, see for example the comments by the

Council of the European Union in its Presidency note to the Working Party on Intellectual Property(Copyright) 16438/11 (4.11.2011).

26 Rosati E. ‘The Orphan Works Directive, or throwing a stone and hiding the hand’, (2013) Journal ofIntellectual Property Law & Practice, 8 (4), 308.


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organisations that hold materials which are obviously confidential for example,private or family correspondence, or anthropological recordings of private tribalceremonies. The issue is exacerbated if orphan works in general are to bemanaged collectively under the extended collective licensing scheme. One mustassume that a court (or a collecting society) faced with this issue would resort tolooking at industry practices and conventions.

4. Collective management and the Memorandum of Understanding onout-of-commerce works

Article 1(5) clearly affirms that the aim of the Directive is not to instructMember States as to how orphan works in general are to be dealt with inrelation to the management of the rights residing within these works at thenational level. Moreover, Member States are free to implement any form ofrights management, including extended collective licensing, legal presumptionsof representation or transfer, and mass digitisation collective management.27

Nevertheless the Directive’s Preamble is also clear in that Member States are toactively pursue and implement voluntary agreements between users, rightholders and collective rights management organisations, and that such agree-ments should take into account the principles agreed upon within the Memo-randum of Understanding 2011 (MOU), in relation to the licensing of out-of-commerce works.28

The MOU forms part of the European Commission’s objectives in the DigitalAgenda for Europe, to further the development of digital libraries in Europeand to provide the widest possible access to European cultural heritage. Thesignatories to the MOU, which includes libraries, publishers, authors and theircollecting societies, have agreed to a set of key principles that is aimed to easethe digitisation and making available of out-of-commerce books and journalsvia voluntary licensing agreements. While there is no legal basis to the MOU, itis explicitly recognised that the memorandum is a step towards enabling thelimitation to copyright as expressed within Article 5(2)(c) of Directive 2001/29/EC, and is clearly complementary to the orphan works Directive.

In summary, the MOU sets out the several principles in relation to voluntaryagreements, including the following:

27 Dir. 2012/28, Recital 24.28 Ibid, Recital 4.


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(i) both commercial and non-commercial licensing agreements are recog-nised, though the agreements must define the nature of uses authorised;29

(ii) the moral rights of attribution and integrity will be respected;30

(iii) licences will only be granted by collective management organisations inwhich a substantial number of authors and publishers affected by theAgreement are members and representatives;31

(iv) right holders have the right to opt out of and to withdraw their worksfrom any licensing scheme;32 and

(v) collective management organisations will be presumed to represent rightholders who have not transferred the management of their rights.33

The last principle implicitly accepts that where orphan works are identified,there will be a presumption of representation by collective management organ-isations. This will depend on the mandate of each national collecting society,and whether under national law, extended collective licensing is recognised, theambit of the mandate, and whether collective managements organisations areentitled to represent non-members in specific types of works.

NOTES

1. Relevant instruments

Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 oncertain permitted uses of orphan works O J L 299/5, 27.10.2012 .

European Commission Press Release on orphan works Directive, MEMO/12/743, 4.10.2012.European Commission, ‘Impact assessment on the cross-border online access to orphan works’

SEC(2011) 615 final; available at http://ec.europa.eu/internal_market/copyright/docs/orphan-works/impact-assessment_en.pdf.

European Commission’s Explanatory Memorandum to Proposal for a Directive of the EuropeanParliament and of the Council on certain permitted uses of orphan works, COM(2011) 289final, 2011/0136 (COD).

‘Memorandum of Understanding: Key Principles on the Digitisation and Making Available ofOut-of- Commerce Works’ (2011); available at http://ec.europa.eu/internal_market/copyright/docs/copyright-infso/20110920-mou_en.pdf.

European Parliament Committee on Legal Affairs, ‘Amendments 49 – 170 Draft report LidiaJoanna Geringer de Oedenberg on the proposal for a directive of the European Parliament andof the Council on certain permitted uses of orphan works (PE472.338v01–00)’ (28.10.2011).

Council of the European Union Presidency note to the Working Party on Intellectual Property(Copyright) 16438/11, 4.11.2011.

29 Memorandum of Understanding 2011, Principle No 1(3).30 Ibid, Recital 5.31 Ibid, Principle No 2(1).32 Ibid, Principle No 2(5).33 Ibid, Principle No 2(4).


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European Commission’s Communication, ‘A Digital Agenda for Europe’ COM(2010) 245final/2.

Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on theharmonisation of certain aspects of copyright and related rights in the information society, OJL 167/10, 22.6.2001.

EC Communication on the Application of State Aid Rules to public service broadcasting(2001), OJ C 320/5, <http://ec.europa.eu/competition/state_aid/legislation/broadcasting_communication_en.pdf>.

Protocol to the Treaty of Amsterdam on the system of public broadcasting in the Member States(1997) OJ C 340/109.

High Level Expert Group on Digital Libraries (2006–2009) (Copyright Sub-Group), ‘FinalReport on Digital Preservation, Orphan Works and Out-of-Print Works’, 2008, (available athttp://ec.europa.eu/information_society/activities/digital_libraries/doc/hleg/reports/copyright/copyright_subgroup_final_report_26508-clean171.pdf ).

2. Bibliography

van Gompel, S. ‘The Orphan Works chimera and how to defeat it: A view from across theAtlantic’ (2013) Berkeley Technology Law Journal, 3, 1347–78.

Rosati E. ‘The Orphan Works Directive, or throwing a stone and hiding the hand’, (2013) Journalof Intellectual Property Law & Practice, 8 (4), 303 – 310.


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ARTICLE 2ORPHAN WORKS

1. A work or a phonogram shall be considered an orphan work if none ofthe rightholders in that work or phonogram is identified or, even if oneor more of them is identified, none is located despite a diligent searchfor the rightholders having been carried out and recorded in accord-ance with Article 3.

2. Where there is more than one rightholder in a work or phonogram, andnot all of them have been identified or, even if identified, located after adiligent search has been carried out and recorded in accordance withArticle 3, the work or phonogram may be used in accordance with thisDirective provided that the rightholders that have been identified andlocated have, in relation to the rights they hold, authorised the organ-izations referred to in Article 1(1) to carry out the acts of reproductionand making available to the public covered respectively by Articles 2and 3 of Directive 2001/29/EC.

3. Paragraph 2 shall be without prejudice to the rights in the work orphonogram of rightholders that have been identified and located.

4. Article 5 shall apply mutatis mutandis to the rightholders that have notbeen identified and located in the works referred to in paragraph 2.

5. This Directive shall be without prejudice to national provisions onanonymous or pseudonymous works.

I. COMMENTARY

1. Defining an orphan work

A. Policy background

Article 2 of the Directive lays down the rules under which a work may acquireorphan status.This establishes the scope of the Directive. Nevertheless, in orderto illustrate the context in which this Directive has been adopted, it is helpful torecollect some of the definitions that have been given, in the course of the years,to the problem of orphan works. The list below is an illustration of severaldifferent approaches:

Orphan works are works that are in copyright but whose right holders cannot beidentified or located. Protected works can become orphaned if data on the author


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and/or other relevant right holders (such as publishers, photographers or film produc-ers) is missing or outdated.34

Orphan works are copyrighted works whose owners are difficult or even impossible tolocate.35

An orphan work is a work in copyright (or other material protected by copyright) whoseright holders (or at least one of the right holders) remain unidentified or untraceablemaking it impossible to get consent for using the work.36

A work is ‘orphan’ with respect to right holders whose permission is required to use itand who can either not be identified, or located based on diligent search on the basis ofdue diligence guidelines. This search must be both in good faith (subjectively) andreasonable in light of the type of rightholder (objectively).37

Orphan Works are works of art (and other copyrighted material) that are believed orknown to be in copyright but whose copyright owner is unknown or untraceable.Orphan Works can be original works of art, or an original image (e.g. a photograph) of awork of art. When an original work of art is out of copyright, images of that work of artmay continue to be in copyright.38

[…] the situation where the owner of a copyrighted work cannot be identified andlocated by someone who wishes to make use of the work in a manner that requirespermission of the copyright owner.39

[…] works whose rightholders are not identifiable or rightholders are not locatable … 40

The choice between one or another definition to the orphan work problemposes different legal problems.

34 European Commission Communication, ‘Copyright in the Knowledge Economy’ COM(2009) 532 final, 5;(European Commission Communication 2009).

35 European Commission Communication ‘Europe’s cultural heritage at the click of a mouse: Progress on thedigitisation and online accessibility of cultural material and digital preservation across the EU’ COM(2008)513 final, 6; (European Commission Communication 2008).

36 Agnieszka Vetulani, The Problem of Orphan Works in the EU (2008), 7 <http://ec.europa.eu/information_society/activities/digital_libraries/doc/reports_orphan/report_orphan_v2.pdf >.

37 The European Digital Libraries Initiative, Sector-Specific Guidelines on Due Diligence Criteria for OrphanWorks (2008), 3, <http://ec.europa.eu/information_society/activities/digital_libraries/doc/hleg/orphan/guidelines. pdf>.

38 MILE (Metadata Image Library Exploitation) Project, ‘What is an Orphan Work?’ <http://orphanworks.ssl.co.uk >.

39 US Copyright Office, Report On Orphan Works (2006), 15 <http://www.copyright.gov/orphan/orphan-report.pdf>.

40 i2010: Digital Libraries High Level Expert Group – Copyright Subgroup, Report on Digital Preservation,Orphan Works, and Out-of-Print Works. Selected Implementation Issues (2007), 9 (with reference to a 2006 interimreport) <http://ec.europa.eu/information_society/activities/digital_libraries/doc/hleg/reports/copyright/copyright_subgroup_final_report_26508-clean171.pdf>.


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B. ‘Orphan work’ in the EU context

Article 2 defines an orphan work as a work that is presumed to be a protectedwork because right holders of that work either can be neither identified orlocated. A work can only be classified as an orphan work after a potential userfulfils the criteria of diligent search and recordation as set out in Article 3.

Broadly speaking, the term ‘orphan work’ covers a work in which copyrightsubsists, and where after a reasonable enquiry or a due diligent search, the ownerof the copyright cannot be identified or his whereabouts ascertained. Thedefinition of an orphan work has been a contentious point as there are twoapproaches determining a work’s status. One solution would have been todefine works as public domain works, unless and until the right holders of theworks are identified or located. This ‘opt-in’ approach would have recognisedthe inherent dilemma that the issue of orphan works raises, namely that theuncertainty regarding the identity of the author or his whereabouts influencesthe copyright term, which in many instances is dependent on the date of deathof the author. Instead, the EU Directive adopts the ‘opt-out’ path where allworks with unidentified or unlocated authors are considered to be within theirterm of copyright protection, but can be used, subject to the search andrecordation conditions. In defining orphan works according to the wordingcontained in Article 2, the EU legislator has taken an approach which priori-tises certain policies. With this legal instrument, the EU has provided ananswer to the problem that the Commission defined in the following terms:

Orphan works pose a problem because libraries, which are legally obliged to obtainprior authorisation for making works available to the public online, are unable to locateand contact the relevant rightholders. In these circumstances, libraries that makematerial available online without prior authorisation from rightholders risk being suedfor copyright infringement. The potential for infringement is more acute in cases ofmass-digitisation projects given their large scale.41

C. Effect on anonymous and pseudonymous works

The Directive clearly stipulates that national provisions, which govern works byauthors who deliberately withhold the attribution of the work and publisheither anonymously or under a pseudonym, will not be prejudiced.42 Mostnational laws have their own specific guidelines as to how to establish theidentity of such authors, and how to apply for compulsory licences for use of

41 European Commission, ‘Impact assessment on the cross-border online access to orphan works’ SEC(2011)615 final, 9 <http://ec.europa.eu/internal_market/copyright/docs/orphan-works/impact-assessment_en.pdf>;(European Commission Impact Assessment 2011).

42 On the distinction between orphan works and anonymous or pseudonymous works, see European CommissionImpact Assessment 2011, 9, fn. 23.


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such works.The concern for a beneficiary institution would then be to establishwhether a work has been published under these nationally governed circum-stances, or whether the work has been truly orphaned, and thus falls under thegovernance of the Directive. The issue may be more difficult in relation todigital works, many contributions posted on the internet are either unidentifiedor deliberately published under a false identity in order to protect the author’sprivacy.

2. Multiple right holders

A. Multiple authors and owners

Orphan works, by their nature, do not yield the identity of right holders easilyand there may be instances where a work is owned by multiple persons, whoseidentity or location may be unknown. Article 2(2) applies when the userorganisation knows, after having done a diligent search, that multiple rightholders are involved. Where more than one right holder is concerned, the workwill be classified as an orphan work unless all the right holders are identified andlocated.The work will still be available for use as stipulated under the Directive,provided the beneficiaries of the Directive have obtained authorisation fromsuch right holders as have been identified and located.

B. Duration of the orphan work status

Where a work falls to be declassified as an orphan work, Article 2(4) serves toprotect the interests of all the right holders involved, including those whichhave yet to be identified and located.

NOTES

1. Related instruments

European Commission, ‘Impact assessment on the cross-border online access to orphan works’SEC(2011) 615 final <http://ec.europa.eu/internal_market/copyright/docs/orphan-works/impact-assessment_en.pdf>.

European Commission Communication, ‘Copyright in the Knowledge Economy’ COM(2009)532 final.

European Commission Communication ‘Europe’s cultural heritage at the click of a mouse:Progress on the digitisation and online accessibility of cultural material and digital preservationacross the EU’ COM(2008) 513 final.


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2. Bibliography

Agnieszka Vetulani, The Problem of Orphan Works in the EU (2008), at p. 7 <http://ec.europa.eu/information_society/activities/digital_libraries/doc/reports_orphan/report_orphan_v2.pdf >.

The European Digital Libraries Initiative, Sector-Specific Guidelines on Due Diligence Criteria forOrphan Works (2008) <http://ec.europa.eu/information_society/activities/digital_libraries/doc/hleg/orphan/guidelines.pdf>; (The European Digital Libraries Initiative Guidelines2008).

MILE (Metadata Image Library Exploitation) Project, ‘What is an Orphan Work?’<http://orphanworks.ssl.co.uk>.

U.S. Copyright Office, Report On Orphan Works (2006) <http://www.copyright.gov/orphan/orphan-report.pdf>.

i2010: Digital Libraries High Level Expert Group – Copyright Subgroup, Report on DigitalPreservation, Orphan Works, and Out-of-Print Works. Selected Implementation Issues(2007) (with reference to a 2006 interim report) <http://ec.europa.eu/information_society/activities/digital_libraries/doc/hleg/reports/copyright/copyright_subgroup_final_report_26508-clean171.pdf>.


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ARTICLE 3DILIGENT SEARCH

1. For the purposes of establishing whether a work or phonogram is anorphan work, the organizations referred to in Article 1(1) shall ensurethat a diligent search is carried out in good faith in respect of each workor other protected subject-matter, by consulting the appropriatesources for the category of works and other protected subject-matter inquestion. The diligent search shall be carried out prior to the use of thework or phonogram.

2. The sources that are appropriate for each category of works or phono-gram in question shall be determined by each Member State, inconsultation with rightholders and users, and shall include at least therelevant sources listed in the Annex.

3. A diligent search shall be carried out in the Member State of firstpublication or, in the absence of publication, first broadcast, except inthe case of cinematographic or audiovisual works the producer ofwhich has his headquarters or habitual residence in a Member State, inwhich case the diligent search shall be carried out in the Member Stateof his headquarters or habitual residence.

In the case referred to in Article 1(3), the diligent search shall becarried out in the Member State where the organization that made thework or phonogram publicly accessible with the consent of the right-holder is established.

4. If there is evidence to suggest that relevant information on right-holders is to be found in other countries, sources of information avail-able in those other countries shall also be consulted.

5. Member States shall ensure that the organizations referred to in Art-icle 1(1) maintain records of their diligent searches and that thoseorganizations provide the following information to the competentnational authorities:(a) the results of the diligent searches that the organizations have

carried out and which have led to the conclusion that a work or aphonogram is considered an orphan work;

(b) the use that the organizations make of orphan works in accord-ance with this Directive;

(c) any change, pursuant to Article 5, of the orphan work status ofworks and phonograms that the organizations use;

(d) the relevant contact information of the organization concerned.6. Member States shall take the necessary measures to ensure that the

information referred to in paragraph 5 is recorded in a single publiclyaccessible online database established and managed by the Office for


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Harmonization in the Internal Market (‘the Office’) in accordancewith Regulation (EU) No 386/2012. To that end, they shall forwardthat information to the Office without delay upon receiving it from theorganizations referred to in Article 1(1).

I. COMMENTARY

1. Summary of ‘diligent search’ rules

Under Article 2 of the Directive, a work or phonogram can only be classified ashaving an orphan status if there is a “diligent search”, and the right holder is notidentified/cannot be located. Article 3 defines the parameters of diligent searchin the following terms:

(a) prior to any use of the work or phonogram, a ‘good faith’ diligent searchmust be carried out for each work;

(b) beneficiary institutions must consult the ‘appropriate sources’ for thecategory of works in question;

(c) Member States shall determine what will constitute ‘appropriate sources’for the different categories of works;

(d) beneficiary user institutions must record their diligent searches and theresults thereof, and make such records available to the relevant publicauthorities.

As seen from above, Article 3 lays down the ‘diligent search’ framework in termsof four main issues: ‘diligent search’; the nature of ‘appropriate sources’ to besearched; the geographical and social extent of the search; and the manner ofrecordation.43 The interpretation and extent of Article 3 will have great impacton the future management and practices of collections by beneficiary insti-tutions.

2. ‘Diligent search’ and ‘good faith’

The Directive is not clear as to what steps are required in order to undertake adiligent search. Such searches need not be undertaken solely by the beneficiaryinstitution. Recital 13 clearly recognises that diligent searches for whole

43 See Dir. 2012/28 on certain permitted uses of orphan works, Recital 14 and The European Digital LibrariesInitiative, Sector-Specific Guidelines on Due Diligence Criteria for Orphan Works (2008) <http://ec.europa.eu/information_society/activities/digital_libraries/doc/hleg/orphan/guidelines.pdf>; (The European DigitalLibraries Initiative Guidelines 2008), 4.


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collections may be too onerous and expensive for any individual beneficiaryinstitution, and mandates that such searches may be carried out by otherorganisations for a fee. There should be an assumption that if the beneficiary/user institution can show that it paid a fee to a third party for a search to beinstituted, this will constitute good faith. The concern then arises as to howthird-party organisations should be regulated, especially if the criterion of goodfaith is applied to such search organizations. Recital 14 provides some guidancein that Member States can refer to the diligent search guidelines agreed in thecontext of the European Digital Libraries Initiative Guidelines (High LevelWorking Group on Digital Libraries).44 A reference to these guidelines doesnot, however, yield many specific steps. For example, the guidelines state thatcultural institutions are to be encouraged to cooperate and publish searchprocedures and methodologies.45 It does not actually state what such proced-ures and methodologies might be. Other hints include: publishing announce-ments in the media (either trade, professional or press); documenting thesearches with dates and names; including statements as to the status of a workwithin the institution’s information or collections management system.46

3. ‘Appropriate sources’

The list of appropriate sources is to be determined with reference to the list ofsources in the Annex, as well as a list that will be made by individual MemberStates, ‘in consultation with rightholders and users’. The reference to ‘right-holders’ may sound anomalous but presumably collecting societies who hold anational mandate to operate extended collective licensing (i.e. representation ofworks of non-right holders, including orphaned works) will be part of anynational consultation process. The Annex sets out a long list of sourcesincluding legal deposit, library catalogues, and authority files maintained bylibraries and other institutions; the trade and authors’ or right holders’ associa-tions in the respective country; existing databases and registries, databases ofthe relevant collecting or representative societies; sources that integrate multipledatabases and registries (such as ARROW, the Accessible Registries of RightsInformation and Orphan Works).

This leads to another concern in relation to works which fall outside the scopeof existing databases or trade organisations. The European Digital Libraries

44 The European Digital Libraries Initiative Guidelines 2008. High Level Expert Group on Digital Libraries,Final Report on Digital Preservation, Orphan Works and Out-of-Print Works (2008),15–16 <http://ec.europa.eu/information_society/activities/digital_libraries/experts/hleg/index_en.htm>; (High Level Expert GroupReport 2008).

45 The European Digital Libraries Initiative Guidelines 2008, 3; and High Level Expert Group Report 2008, 15.46 The European Digital Libraries Initiative Guidelines 2008, 4.


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Initiative Guidelines suggest that for some sectors which are not represented byprofessional organisations, a more pragmatic and flexible approach may beviable.47 An example of such a sector is grey literature which comprises bothunpublished and private papers, or works which are published by non-commercial publishers such as research institutes or individuals.

The national implementation of this provision by national governments willhave a considerable impact in determining what will constitute a diligent searchof sources in each Member State. Nevertheless, one should also take heed ofArticle 3(6), which may, in time, supersede the importance of national searchparameters, discussed below.

4. Extent and effect of diligent search

The basic rule is that EU beneficiaries will have to carry out one diligent searchper work/phonogram in only one Member State. That Member State will bethe one where the work is first published or broadcast (in the absence ofpublication); where cinematographic or audiovisual works are concerned, thesearch must be carried out in the Member State where the producer has hisheadquarters or habitual residence. If the work or phonogram is unpublished,but has been made publicly accessible by an institution with the right holders’consent (as established under Art. 1(3)), then the diligent search will be carriedout in the Member State of the organisation which enabled such access.

There is an important exception to the one-search per Member State rule.Should there be any evidence, which suggests that relevant information as toright holders is to be found elsewhere, then the diligent search must consultthese extraneous sources. The Directive is quite clear that these other sourcescan be in any country, and not merely within the EU. This provision opens upthe debate as to whether there should be a clear link struck between ‘diligentsearch’ and viable and sustainable costs for any institution to undertake adiligent search.48

47 Ibid, 6.48 This was a recurrent point in the European Commission, ‘Impact assessment on the cross-border online access

to orphan works’ SEC(2011) 615 final. <http://ec.europa.eu/internal_market/copyright/docs/orphan-works/impact-assessment_en.pdf>; (European Commission Impact Assessment 2011). See in particular the exampleslisted, 56–57.


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5. Recordation and public register

A. What must be recorded

Under Article 5(2) of the Berne Convention,49 copyright protection is enjoyedand exercised without the need to comply with formalities, including registra-tion of a work. All the EU Member States, by virtue of their individual andUnion membership under the Berne Convention and the TRIPs Agreement,50

grant copyright protection automatically. From this historical context, it can beappreciated that Article 3(5) and (6) of this Directive introduces a new type ofmandatory registration, where use (and not protection) of the work is depend-ent on the registration of the work in the official orphan works database. Once adiligent search has been conducted, the search procedure and the results of suchsearches have to be recorded. In addition to this, beneficiary organisations mustalso record the use that such organisations make of orphan works, and anychanges that affect the orphan work status of a work.

B. OHIM orphan works database

Article 3(6) goes further and places an obligation on Member States to ensurethe recorded information is, in turn, re-recorded in a single database establishedand managed by the Office for Harmonization in the Internal Market(OHIM). One concern is that there is no information as yet on the workingmechanisms of this database and it is understood that several details are still incourse of definition. According to OHIM sources, this system will be aharmonised single point of access for information on orphan works.51 It is alsoindicated that: ‘Over the course of 2013, the Office, supported by the Commis-sion, will begin its preparations to establish the database, so that it is fit forpurpose by late 2014, when the implementation period will conclude and theDirective will apply.’52

One query concerns the possible interactions between parallel databases exist-ing in Member States, and in the OHIM. Naturally, the optimal provisionwould be for all national governments to instruct beneficiary institutions totransfer all relevant search data and results directly to OHIM. The importanceof a single EU database is clear as, with time, this database may represent theauthoritative and comprehensive one-stop search for certain types of works.

49 Berne Convention for the Protection of Literary and Artistic Works (1886), as amended (Paris Act).50 Agreement on Trade-Related Aspects of Intellectual Property Rights (1994), Art. 9(1).51 European Observatory on Infringements of Intellectual Property Rights (OHIM), Work Programme 2013, 29

<http://oami.europa.eu/ows/rw/resource/documents/observatory/work_programme_2013_en.pdf>; (OHIMObservatory Work Programme 2013).

52 OHIM Observatory Work Programme 2013, 31. See also European Observatory on Infringements ofIntellectual Property Rights (OHIM), Annual Report 2012, 31.


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Take the example of a book written by a known author. After a diligent searchby an institution in Member State A, the work is declared as having orphanwork status because the author cannot be located. A subsequent institution inMember State B, which wishes to use another work written by the same author,need not go any further than to consult the OHIM database. Moreover, in suchcases where the author’s location has been declared as unknown in the centralOHIM database, it may well be that a single search in the OHIM register willconstitute a diligent search in good faith. Moreover, it should be noted that thesupport for a central database is a shared objectives of stakeholders at thenational and regional levels. To provide an example, the Digital CopyrightExchange proposed in the UK follows the reasoning that national aggregatorsof information could contribute to the exchange of information on copyrightownership and, ultimately, to licensing not only at the national level but at amulti-territorial level.53

C. Background and critique of a central EU database/register

A number of different projects have been launched to facilitate the identifi-cation of works through the use of recognised metadata and identifiers.Nevertheless, the issue of database or ‘registers’ for information concerningcopyright ownership is controversial. For example, in 2009 a Public Hearingwas held with the aim of gathering further evidence on how the digitisation anddissemination of orphan works could best be managed in compliance with EUand national copyright rules. In the subsequent report, it was indicated that theconsulted parties had supported the idea of creating an:

[…] international registry containing information about copyright status of works.Registries were seen as facilitating a diligent search and prevent the birth of orphanworks in the future.There was general support for the creation of central databases suchas the EU-funded ARROW database which will provide users who want to digitisetheir collections with information on the status of protected works and recognition thatregistration in such a database would prevent the emergence of orphans in the future.54

ARROW is an example of the several initiatives aimed at building voluntarydatabase to ease diligent searches and ultimately avoid the emergence of neworphans. Accordingly,

[o]ne search in ARROW should be all you should need to determine the copyrightstatus of a cultural good in Europe. If it were embedded in the forthcoming Directive on

53 See Hooper, R. and R. Lynch, ‘Copyright works Streamlining copyright licensing for the digital age’ (2012), 41,<http://www.ipo.gov.uk/dce-report-phase2.pdf>.

54 Report on the Public Hearing on Orphan Works, Brussels, 26.10.2009, 2 <http://ec.europa.eu/internal_market/copyright/docs/copyright-infso/orphanworks/report_en.pdf>.


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orphan works, ARROW could become the official portal in Europe where you can findessential rights information and do automated searches of rightholders and copyrights.In the medium-term, it could cover all European print works (books, magazines, etc.) inthe EU, and afterwards – why not? – also photographic and audiovisual works.55

More specifically,

ARROW […] is a project co-funded under the eContent+ programme of the EuropeanCommission and managed by a consortium of European national and universitylibraries, organisations representing authors, publishers and Reproduction RightsOrganisations (RROs, collective management organisations in text and image basedworks). ARROW aims to establish a system to identify rights, rightholders, rightsstatus of a work, including whether it is orphan or out of print.56

The efforts deployed in the setting up and implementation of the ARROWbusiness model are now developing in a further project named ARROW Plus,aimed at the involvement of a larger number of stakeholders and countries, toreach a critical mass and expand the usefulness and value of the database inquestion.57

Crucially, a database such as this works on the basis of common identifiers thatmajor stakeholders use for the input and exchange of information.The usage ofshared identifiers is key to the success of a database. It is observed that ‘[t]heidentifiers used by each data source for the same entity may not be the same,especially when a standard identifier is not available …’.58 Libraries or archives,which are referred to as ARROW ‘data sources’, may not have access to or maynot have used established standard identifiers in the process of recording detailsof their catalogues. In the use of a shared database, however, this aspect iscrucial:

[t]he use of ARROW identifiers within the system allows to maintain the relationamong the different entities with a single identification framework, keeping also the

55 Neelie Kroes addressing the orphan works challenge IFRRO (The International Federation of ReproductionRights Organisations) launch of ARROW+ (Accessible Registries of Rights Information and Orphan Workstowards Europeana) Brussels, 10 March 2011 (SPEECH/11/163) <http://europa.eu/rapid/press-release_SPEECH-11–163_en.htm>.

56 Arrow Business Model (2011), 2 <http://www.arrow-net.eu/sites/default/files/ARROW_Business_Model.pdf>.

57 ARROW Plus factsheet <http://www.arrow-net.eu/sites/default/files/ARROW%20Plus%20factsheet_JAN12.pdf>.

58 ARROW, Registry of Orphan Works Management System (Grant Agreement ECP-2007-DILI-527003), 14<http://www.arrow-net.eu/sites/default/files/D6.2_Registry_of_Orphan_Works_Management_System.pdf>.


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association with the identification schemes used by external data sources and at thesame time being interoperable through the use of standard identifiers wheneveravailable.59

ARROW provides a language to certain types of subject matter, geared towardsprinted material. Nevertheless, as illustrated in this chapter, the subject matterof the Directive is likely to be a moving target where the role of technology willbe a crucial factor in defining the practical consequences of the Directive.Projects such as ARROW widen the portfolios of content that is categorisedand digitised according to agreed identifiers. Nevertheless, what is the plan tomake these project speak a common language, or at least for all these project tofeed into the central OHIM European Database? It is also foreseeable thatnational and regional projects (e.g. Arrow) will run for sometime alongsideOHIM database.

It can be said that the choice of OHIM as a provider of the Single Europeandatabase emerged at a later stage in the drafting process of the Directive.Arguably, this was a pragmatic solution aimed at using an existing infrastruc-ture. However, as the discussion here illustrates, duplication of infrastructureexists for different categories of work on the one hand, and for different uses ofthe works on the other.The aim of establishing a single database will be far fromsimple. Cross-links may still provide economies and ecologies in the way theseworks are used.

NOTES

Related instruments

OHIM Observatory on Infringements of Intellectual Property Rights (OHIM), WorkProgramme 2013. http://oami.europa.eu/ows/rw/resource/documents/observatory/work_programme_2013_en. pdf.

European Observatory on Infringements of Intellectual Property Rights (OHIM), AnnualReport 2012.


Neelie Kroes Address, Brussels, 10 March 2011 (SPEECH/11/163) <http://europa.eu/rapid/press-release_SPEECH-11–163_en.htm>.

Arrow Business Model (2011) <http://www.arrow-net.eu/sites/default/files/ARROW_Business_Model.pdf>.

ARROW Plus factsheet <http://www.arrow-net.eu/sites/default/files/ARROW%20Plus%20factsheet_JAN12.pdf>.

59 Ibid.


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Report on the Public Hearing on Orphan Works, Brussels, 26.10.2009, <http://ec.europa.eu/internal_market/copyright/docs/copyright-infso/orphanworks/report_en.pdf>.

The European Digital Libraries Initiative, Sector-Specific Guidelines on Due DiligenceCriteria for Orphan Works (2008) <http://ec.europa.eu/information_society/activities/digital_libraries/doc/hleg/orphan/guidelines.pdf>.

High Level Expert Group on Digital Libraries, Final Report on Digital Preservation, OrphanWorks and Out-of-Print Works (2008) <http://ec.europa.eu/information_society/activities/digital_libraries/experts/hleg/index_en.htm>.

ARROW, Registry of Orphan Works Management System (Grant Agreement ECP-2007-DILI-527003) <http://www.arrow-net.eu/sites/default/files/D6.2_Registry_of_Orphan_Works_Management_System.pdf>.

Agreement on Trade-Related Aspects of Intellectual Property Rights (1994).Berne Convention for the Protection of Literary and Artistic Works (1886), as amended (Paris

Act, 1971).

2. Bibliography

Hooper, R. and . Lynch ‘Copyright works Streamlining copyright licensing for the digital age’(2012) <http://www.ipo.gov.uk/dce-report-phase2.pdf>.


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ARTICLE 4MUTUAL RECOGNITION OF ORPHAN WORK STATUS

A work or phonogram which is considered an orphan work according toArticle 2 in a Member State shall be considered an orphan work in allMember States. That work or phonogram may be used and accessed inaccordance with this Directive in all Member States. This also applies toworks and phonograms referred to in Article 2(2) in so far as the rights of thenon- identified or non-located rightholders are concerned.

I. COMMENTARY

Once the orphan status of a work is established, the work will be deemed anorphan work throughout the EU. The rationale of this provision, as set out inboth the Impact Assessment and Recital 8 of the Directive, is twofold. First,there is the intention of ensuring legal certainty throughout the EU.60 Sec-ondly, an efficiency goal could be attained if the resulting system avoids theneed for multiple diligent searches and duplication of tasks.61 As confirmed inthe Explanatory Memorandum to the Directive, the mutual recognition prin-ciple will make it possible for orphan works to be made available online forcultural and educational purposes without further prior authorisation;62 unlessthe owner of the work puts an end to the orphan status under Article 5 (seebelow). It is observed that the mutual recognition option was the perceived asthe most pragmatic approach by both the publishing industry and by MemberStates. In this regard, it is noted that publishers emphasised that no orphanwork status regime could be viable without an a priori diligent search toestablish the orphan work status of a work; Member States believed that themutual recognition principle provided a high level of ‘legal certainty for thelibrary community while respecting different legal and cultural traditions’.63

60 European Commission, ‘Impact assessment on the cross-border online access to orphan works’ SEC(2011) 615final, 9, and 33–4, <http://ec.europa.eu/internal_market/copyright/docs/orphan-works/impact-assessment_en.pdf>.

61 Ibid, 15–16.62 European Commission’s Explanatory Memorandum to Proposal for a Directive of the European Parliament

and of the Council on certain permitted uses of orphan works, COM(2011) 289 final, 2011/0136 (COD), 1.63 European Commission Impact Assessment 2011, 33–4.

ARTICLE 4: MUTUAL RECOGNITION OF ORPHAN WORK STATUS

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NOTES



European Commission’s Explanatory Memorandum to proposal for a directive of the EuropeanParliament and of the Council on certain permitted uses of orphan works, COM(2011) 289final, 2011/0136 (COD).


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ARTICLE 5END OF ORPHAN WORK STATUS

Member States shall ensure that a rightholder in a work or phonogramconsidered to be an orphan work has, at any time, the possibility of puttingan end to the orphan work status in so far as his rights are concerned.

I. COMMENTARY

The provision is self-explanatory in that when the unidentified or unlocatedright holder does subsequently come forward to assert his rights, he or she hasthe ‘possibility’ of ending the orphan work status of his work. Nevertheless, theprovision offers no guidelines for two foreseeable events.64 First, what sort ofevidence and documentation is required for a right holder to prove his assertionof copyright ownership? Secondly, does the right holder have the right to asserthis claims in any of the EU jurisdiction, or is he or she limited to the jurisdictionwhere the first diligent search took place, as set out in Article 3(3) of thisDirective? Will there be a central EU mechanism, via the OHIM CentralRegistry, whereby right holders can assert their claims, and have their interestlodged in the database while the matter is adjudicated upon in the relevantMember State? The issue is further exacerbated in the case of multiple rightholders.This provision, read together with Article 2, make it clear that in such asituation, should one or some of the right holders be identified or located, theorphan status of the work ceases, and the continued use of the work isdependent upon the authorisation of the identified and/or located right hold-ers.The burden of checking the orphan status of a work continuously appears tofall on the beneficiary institution. This issue, only partly addressed in Recital18,65 will have practical implications on the question of compensation payableto such right holders (set out in Art. 6), especially if such information isavailable nationally but is not immediately lodged with the central EU register.Finally, the provision is clear that the end of the orphan work status should onlybe instituted by the right holder in question, and not on behalf of such a rightholder by other representative organisations including collective managementorganisations. The question which remains is whether a collecting societywhich operates under a national extended collective licensing mandate will beallowed to claim the right to end orphan status?

64 This concern is also highlighted in Rosati, E. ‘The Orphan Works Directive, or throwing a stone and hiding thehand’ (2013) Journal of Intellectual Property Law & Practice, 8(4), 309.

65 Directive 2012/28/EU , Recital 18

ARTICLE 5: END OF ORPHAN WORK STATUS

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NOTES


Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 oncertain permitted uses of orphan works O J L299/5.

2. Bibliography

Rosati, E. ‘The Orphan Works Directive, or throwing a stone and hiding the hand’ (2013) Journalof Intellectual Property Law & Practice, 8(4), 303–10.


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ARTICLE 6PERMITTED USES OF ORPHAN WORKS

1. Member States shall provide for an exception or limitation to the rightof reproduction and the right of making available to the public pro-vided for respectively in Articles 2 and 3 of Directive 2001/29/EC toensure that the organizations referred to in Article 1(1) are permittedto use orphan works contained in their collections in the followingways:(a) by making the orphan work available to the public, within the

meaning of Article 3 of Directive 2001/29/EC;(b) by acts of reproduction, within the meaning of Article 2 of Direct-

ive 2001/29/EC, for the purposes of digitisation, making avail-able, indexing, cataloguing, preservation or restoration.

2. The organizations referred to in Article 1(1) shall use an orphan workin accordance with paragraph 1 of this Article only in order to achieveaims related to their public-interest missions, in particular the preser-vation of, the restoration of, and the provision of cultural and educa-tional access to, works and phonograms contained in their collection.The organizations may generate revenues in the course of such uses, forthe exclusive purpose of covering their costs of digitising orphan worksand making them available to the public.

3. Member States shall ensure that the organizations referred to in Art-icle 1(1) indicate the name of identified authors and other rightholdersin any use of an orphan work.

4. This Directive is without prejudice to the freedom of contract of suchorganizations in the pursuit of their public- interest missions, particu-larly in respect of public-private partnership agreements.

5. Member States shall provide that a fair compensation is due to right-holders that put an end to the orphan work status of their works orother protected subject-matter for the use that has been made by theorganizations referred to in Article 1(1) of such works and other pro-tected subject-matter in accordance with paragraph 1 of this Article.Member States shall be free to determine the circumstances underwhich the payment of such compensation may be organised. The levelof the compensation shall be determined, within the limits imposed byUnion law, by the law of the Member State in which the organization,which uses the orphan work in question is established.

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I. COMMENTARY

1. Scope of permitted use

Once a work or phonogram is classified as being an orphan work, the benefi-ciary institutions can reproduce and make available such works. The acts ofreproduction and making available are defined under Articles 2 and 3 ofDirective 2001/29/EC.66 It is notable that no other right is affected, includingthe EU-wide right of distribution.67 This is also not the first instance withinEU law when a specific exception has been made in relation to the right ofreproduction for publicly accessible libraries, educational establishments, muse-ums or archives.68 However, this Directive extends the exception to the makingavailable right, and sets out in greater detail the parameters of the permitteduses. Several limitations apply to institutional usage69, namely:

(a) orphan works can only be reproduced for the purpose of digitisation,making available, indexing, cataloguing, preservation or restoration;

(b) orphan works can only be used in order to achieve aims related to theirpublic interest missions, notably preservation, restoration and the provi-sion of cultural and educational access to works and phonograms con-tained in their collections;

(c) where right holders and authors have been identified (but presumablyunlocated), their names must be indicated when the work is used.

2. Beneficiaries

A. Nature of public interest organisation

The recurring dilemma of this Directive is whether the provisions apply tonon-state or privately subsidized organisations with a public interest and freeaccess ethos, such as non-governmental organisations or not for profit orcharitable organisations (see the discussion in relation to Art. 2). Recital 20states that film heritage institutions should ‘cover organizations designated byMember States to collect, catalogue, preserve and restore films forming part oftheir cultural heritage’,70 which implies a publicly governed body; similarly,

66 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation ofcertain aspects of copyright and related rights in the information society OJ L 167/10 (Dir. 2001/29 on theinformation society).

67 See ibid, Art. 4.68 Ibid, Art. 5(2)(c).69 See in this regard European Commission Impact Assessment 2011: ‘This approach links into the non-

commercial vocation of Europeana and the objective of ensuring the widest dissemination of knowledge.’70 Directive 2012/28/EU , Recital 20.


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public service broadcasters are defined as covering broadcasters with a ‘publicservice remit’, as per Member States’ Regulations. Recital 18, on the otherhand, acknowledges that many digitisation projects must involve commercialpartners, which will include both technical and financial assistance by part-ners.71 It is arguable that private or charitable non-state institutions, except filmheritage and public broadcasting ones, will be able to benefit from the safeharbours provided under the Directive as long as they can prove their publicinterest missions, including making their collections publicly accessible, and iftheir use of orphan works does not generate profits.

B Nature of use

The ‘non-for-profit use’ principle is underlined under Article 6(2), whichsanctions the generation of revenues by beneficiary organisations but only forthe exclusive purpose of underwriting the expenses of digitisation and com-munication of the orphan works to the public. Presumably, this principle willapply to exclude use by national cultural heritage institutions if such organ-isations exploit orphan works for commercial purposes beyond their publicinterest mission. On the other hand, the Directive clearly does not apply topublic–private partnerships with commercial entities, where such partnershipsare made in the pursuit of the organisation’s public-interest mission.72

The difficulty one encounters in interpreting Article 6 is the two differentstances adopted in relation to use of a work, namely whether the use is for‘public interest missions’, or use for the generation of revenues. Take theexample of a national museum, which enters into a public–private partnershipwith a commercial third party in order to reproduce and make available itsentire collection online. The beneficiary organisation is allowed to acceptfinancial contributions from a commercial entity for its public interest mission.Can the organisation go further and grant conditional access to certain orphanworks upon payment of a fee? It is arguable that the revenue generated by theaccess fee is necessary in order to cover the costs of digitisation, and this isspecifically allowed under Article 6(2). Will the organisation be able to furtherearmark these revenues for the general maintenance and preservation of allother orphan works in its collection? The answer is not clear as the first sentenceof Article 6(2), in conjunction with Article 6(4), allows use for the purposes ofpreservation, restoration and provision of access to such works. On the otherhand, it is very clear from Recital 22 that third-party commercial partners willnot be entitled to any rights to use or control the use of orphan works.

71 Ibid, Recital 18.72 This concern was considered and addressed in the European Commission Impact Assessment 2011, 38.


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3. Compensation to right holders

It should be noted that Article 6 does not provide a complete defence to the useof an orphan work. Instead, beneficiary organisations are entitled to use a work,in pursuit of public interest missions, until the orphan work status of that workends. At this point, a ‘fair compensation’ is payable to the right holder.73 Whatfactors should be taken into account in order to determine the amount of faircompensation due? There are no guidelines within the Directive, and MemberStates are free to determine the level of, and circumstances under which, thecompensation is payable.74 The inherent difficulty with Article 6(5) is that it isrepresents the convergence of rules that were previously envisaged in respect oftwo different types of uses. In the previous Draft Directive on orphan works, nocompensation was payable upon the end of an orphan status of a work, if thebeneficiary institutions used the work within their public interest remit.75 Thedraft Directive went further than the current statute to also confer a discretion-ary allowance on Member States to allow non-public interest uses; in suchinstances, a compensation was payable to the right holder upon the expiry of theorphan status of a work.76 The Draft Directive went further to set out astatutory limitation within which a claim could be made i.e. five years from thedate of the act giving rise to a claim brought after the end of the orphan workstatus.77

The open-ended nature of the current provision will be of much concern to userorganisations, and one may speculate whether the amount of compensationpayable should be subject to further circumstances including: the date fromwhich the compensation is calculated; whether reasonable notice of the orphanstatus of a work is required, and if so, what constitutes reasonable notice (if, forexample, the work’s orphan status is revoked in a national database, but not onthe EU central register); innocent use of a work; the absence of a market value ofthe work prior to institutional usage (if, for example, the work was an out ofprint, educational work); and the presence of a national collective managementframework.

73 On the possible advantages and disadvantages of ex post compensation, see S. van Gompel, ‘Unlocking thepotential of pre-existing content: how to address the issue of orphan works in Europe’ (2007) IIC, 6, 669–702.

74 See also Dir. 2001/29 on the information society, Recital 18.75 Proposal for a Directive of the European Parliament and of the Council on certain permitted uses of orphan

works, COM(2011) 289 final, 2011/0136 (COD), Art. 6.76 Ibid, Art. 7.77 Ibid, Art. 7.1, para. 5.


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NOTES


Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on theharmonisation of certain aspects of copyright and related rights in the information society OJL 167/10, 22.6.2001.

European Commission, ‘Impact assessment on the cross-border online access to orphan works’SEC(2011) 615 final, http://ec.europa.eu/internal_market/copyright/docs/orphan-works/impact-assessment_en.pdf.

Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 oncertain permitted uses of orphan works, O J L299/5, 27.10.2012.

Proposal for a Directive of the European Parliament and of the Council on certain permitted usesof orphan works, COM(2011) 289 final, 2011/0136 (COD).

2. Bibliography

van Gompel, S. ‘Unlocking the potential of pre-existing content: how to address the issue oforphan works in Europe’ (2007) IIC, 6, 669–702.


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ARTICLE 7CONTINUED APPLICATION OF OTHER LEGAL PROVISIONS

This Directive shall be without prejudice to provisions concerning, inparticular, patent rights, trade marks, design rights, utility models, thetopographies of semi-conductor products, typefaces, conditional access,access to cable of broadcasting services, the protection of national treasures,legal deposit requirements, laws on restrictive practices and unfair com-petition, trade secrets, security, confidentiality, data protection and privacy,access to public documents, the law of contract, and rules on the freedom ofthe press and freedom of expression in the media.

I. COMMENTARY

The inclusion of this provision is customary practice in EU Directives, andmore specifically in those Directives shaping the harmonisation of copyrightand related rights. It is interesting to consider the aim of this provision in lightof the overall rationale and objectives of the Directive, namely the establish-ment of a limited exception, to be implemented across the Member States.While the Directive widens the scope of permitted acts, this provision limits itby validating other entitlements that may arise under other forms of legislationor even by contract. It is also noticeable that no mention is expressly madewithin Article 8 as to the application of other limitations or exceptions. For this,one must turn to Recital 20 of the Directive which makes it clear that all otherexceptions and limitations provided for under Article 5 of Directive 2001/29/EC are applicable. Moreover, Recital 20 expressly ensures that the three-step test will apply to Article 6 of the Directive.78

What is of more concern is the absence of language nullifying any attempt,especially contractually, to negate the effects of the Directive. This is especiallyan issue in respect of orphan works residing within commercial digital databaseswith technical protection measures. In such an event, can the licence betweeninstitutions and the publisher override the exceptions allowed under the

78 Directive 2012/28/EU , Recital 20, reads as follows:

The exception or limitation established by this Directive to permit the use of orphan works is withoutprejudice to the exceptions and limitations provided for in Article 5 of Directive 2001/29/EC. It can beapplied only in certain special cases which do not conflict with the normal exploitation of the work or otherprotected subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder.


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Directive?79 Should a controversy arise on the effective scope of the mandatoryexception contained in this Directive, it is useful to consider for example thescope of Article 5(5) of the Information Society Directive in the context of theacquis.80 While the Infopaq decision appears to suggest that a narrow interpret-ation is to be preferred, the FAPL v QC Leisure decision provides somereassurance that the interpretation of an exception should not lead to a negationof that exception, but should make that exception effective and able to functionin accordance with its purpose. Article 7 of the Orphan Works Directive,therefore, could be considered in the context of the wider picture provided bythe authorities mentioned above.

NOTES


Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on thelegal protection of computer programs (codified version) OJ L 111/16, 5.6.2009.

2. CJEU case law

Football Association Premier League v QC Leisure (C-403/08 and C-429/08) [2012] 1 CMLR 29[162]–[164].

Infopaq International A/S v Danske Dagblades Forening (C-5/08) [2009] CR I- 6569.Infopaq International v Danske Dagblades Forening (C-302/10) [2012] ECR 1–0000; 17 January

2012, not yet published.

79 See for example, Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on thelegal protection of computer programs (Codified version) OJ L 111/16, Art. 8, which expressly provides thatany contractual provisions contrary to the exceptions within that directive shall be null and void.

80 Further light on the interpretation of this provision in the context of the acquis could come inter alia fromC-5/08 Infopaq International A/S v Danske Dagblades Forening (C-5/08) [2009] ECR I-6569, C-302/10Infopaq Internationalv. Danske Dagblades Forening, 17 January 2012, not yet published; and C-403/08 andC-429/08 Football Association Premier League v QC Leisure [2012] 1 CMLR 29 [162]–[164].

ARTICLE 7: CONTINUED APPLICATION OF OTHER LEGAL PROVISIONS

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ARTICLE 8APPLICATION IN TIME

1. This Directive shall apply in respect of all works and phonogramsreferred to in Article 1 which are protected by the Member States’legislation in the field of copyright on or after 29 October 2014.

2. This Directive shall apply without prejudice to any acts concluded andrights acquired before 29 October 2014.

I. COMMENTARY

The Directive will only take effect in respect of all works and phonogramswhich are still in copyright on or after 29 October 2014. Moreover, it will notaffect any acts concluded prior to this date. This will presumably mean that alllicence agreements, including blanket licence agreements, concluded prior tothis date between user organisations and collecting societies will not beaffected. Should an institutional user wish to avail itself of the Directive’s safeharbours in relation to permitted uses, the user may need to re-negotiateexisting contractual obligations.

A piece of legislation has been adopted in the UK, which will implementDirective 2012/28/EU.81 Some aspects of this Act go beyond the minimumrequirements set in the Directive. The goal of the legislator in the UK isultimately to address a varied range of issues concerning orphan works licensingschemes and extended collective licensing, firstly in the cross-border dimensionenvisaged in the Directive for limited types of non-commercial uses, andsecondly in relation to commercial opportunities that could emerge with regardmono-territorial forms of exploitation.

81 The Enterprise and Regulatory Reform (ERR) Act 2013.


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ARTICLE 9TRANSPOSITION

1. Member States shall bring into force the laws, regulations and admin-istrative provisions necessary to comply with this Directive by 29 Octo-ber 2014. They shall forthwith communicate to the Commission thetext of those provisions.

When Member States adopt those provisions, they shall contain areference to this Directive or shall be accompanied by such a referenceon the occasion of their official publication. The methods of makingsuch reference shall be laid down by Member States.

2. Member States shall communicate to the Commission the text of themain provisions of national law which they adopt in the field covered bythis Directive.

I. COMMENTARY

The time allowed for the implementation of the Directive is relatively short.This is understandable in light of the relatively well-defined and specificprovisions. On the other hand, there is much scope for Member States to delaythe implementation process taking into account the discretional legislativespace that this directive allows in terms of the type of legislative instrumentsthat may be adopted in order to comply with the regional provisions,82 andmore specifically in terms of the mechanics of registering the diligent searchdata.

NOTES

1. Bibliography

Rosati, E. ‘The Orphan Works Provisions of the ERR Act: Are They Compatible With UK andEU Laws?’, (2013) European Intellectual Property Review, 12, 724–740.

82 In this regard, see Rosati E. ‘The Orphan Works Provisions of the ERR Act: Are They Compatible With UKand EU Laws?’, (2013) European Intellectual Property Review, 12, 724–740.

ARTICLE 9: TRANSPOSITION

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ARTICLE 10REVIEW CLAUSE

The Commission shall keep under constant review the development ofrights information sources and shall by 29 October 2015, and at annualintervals thereafter, submit a report concerning the possible inclusion in thescope of application of this Directive of publishers and of works or otherprotected subject-matter not currently included in its scope, and in particu-lar stand-alone photographs and other images.

By 29 October 2015, the Commission shall submit to the European Parlia-ment, the Council and the European Economic and Social Committee areport on the application of this Directive, in the light of the development ofdigital libraries.

When necessary, in particular to ensure the functioning of the internalmarket, the Commission shall submit proposals for amendment of thisDirective.

A Member State that has valid reasons to consider that the implementationof this Directive hinders one of the national arrangements concerning themanagement of rights referred to in Article 1(5) may bring the matter to theattention of the Commission together with all relevant evidence. The Com-mission shall take such evidence into account when drawing up the reportreferred to in the second paragraph of this Article and when assessingwhether it is necessary to submit proposals for amendment of this Directive.

I. COMMENTARY

Member States are in the process of implementing the Directive. As with theother harmonisation efforts in the field of copyright, the Directive attempts toestablish a level playing field for stakeholders in relation to different uses oforphan works. However, the impact of this piece of legislation will have to beassessed on a country-by-country basis. One area of concern will be the scope ofthe subject matter to come within the exception under national laws, especiallyin respect of stand-alone photographs and other images which have generatedmuch debate and controversy. The Directive is limited to print materials, anddoes not extend its coverage especially to artistic, dramatic or musical works, perse, unless embedded within print literature, phonograms or broadcasts (seeCommentary to Art. 1). With this in mind, the Directive sets out a one-yearperiod within which the European Commission has the task of considering


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whether the scope of the Directive should extend to other subject matter.Moreover, while the Directive does not apply to other subject matter, it may bedifficult for national collective management organisations to draw this finedistinction between printed subject matter and other subject matter, in whichcase, some Member States’ laws may mandate collecting societies to governorphan works in respect of all protectable subject matter under copyright law.Member States who face difficulties with the implementation of the Directive,especially with respect to collective management issues, are allowed to notifythe European Commission of such difficulties.

ARTICLE 10: REVIEW CLAUSE

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ARTICLE 11ENTRY INTO FORCE

This Directive shall enter into force on the day following that of its publica-tion in the Official Journal of the European Union.


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ARTICLE 12 ADDRESSEES

This Directive is addressed to the Member States.

ARTICLE 12: ADDRESSEES

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The EU Orphan Works Directive 2012

Documents

Transcript of The EU Orphan Works Directive 2012