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20121004-MEMO-Final adoption of the orphan works directive-Press release-FAQ-ENG

20121004-MEMO-Final adoption of the orphan works directive-Press release-FAQ-ENG

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Published by Axel Beelen
This is a copy of the FAQ of the EU Commisioner Barnier related to the final adoption of the orphan works directive (04/010/2012).
This is a copy of the FAQ of the EU Commisioner Barnier related to the final adoption of the orphan works directive (04/010/2012).

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Published by: Axel Beelen on Oct 05, 2012
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11/23/2013

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MEMO/12/743E
UROPEAN
C
OMMISSION
 
MEMO
Brussels, 4 October 2012
Orphan works – Frequently asked questions
1. What are orphan works and why is a directive to deal with themneeded?
Orphan works are works like books, newspaper or magazine articles, or films that are stillprotected by copyright but for which the copyright holders cannot be located in order toobtain copyright permissions. Orphan works are found in the collections held by Europeanlibraries and cultural institutions.The digitisation and dissemination of orphan works pose a particular cultural and economicchallenge: the absence of a known right holder means that cultural institutions are unableto obtain the required authorisation, to digitise a book, for example. Orphan worksrepresent a substantial part of the collections of Europe's cultural institutions (e.g. theBritish Library estimates that 40 per cent of its copyrighted collections – 150 million worksin total - are orphan works).That is why common rules on how to deal with such works areneeded in order to proceedwith large-scale digitisation projects, such as the Commission'sEuropeana portal. As part of its Intellectual Property Rights (IPR) Strategy (seeIP/11/630), the Commission adopted on 24 May 2011 a proposal to establish common rules on the digitisation (theconversion of analogue data, for example images, video, and text into digital form) andonline display of so-called 'orphan works'.Following the trilogue agreement by the European Parliament and the Council on 6 June2012 (seeMEMO/12/421)and the formal approval by the European Parliament on 13 September 2012, the Directive has finally been adopted today by the Council. It willenter into force by the end of the year. Member States will then have two years totranspose the Directive at national level.
2. What organisations will benefit from the Directive?
The new Directive applies to
 
publicly accessible libraries, educational establishments, museums,
 
archives,
 
film heritage institutions
 
public service broadcasters.Provided that all the conditions set out in the Directive are fulfilled, these culturalorganisations will be entitled to digitise orphan works and make them publicly availableon-line in all Member States on the basis of an exception to copyright applicable in thewhole EU.
 
 2
3. What works are covered by the Directive?
The Directive applies to following categories of works first published in the EU who are stillprotected by copyright but whose authors or other right holders cannot be anymoreidentified and located:
 
works in the print sector (books, journals, magazines and newspapers)
 
embedded images in those print works
 
cinematographic and audio and audio-visual works.The Directive also applies to unpublished works (such as letters, manuscripts, etc) undercertain conditions.
4. What are the main elements of the new Directive?
First, the directive contains rules on how to identify orphan works
. It states that acultural organisation that wishes to digitise and make available the work has to conduct adiligent search to find its copyright holder(s). In this search, it should rely on sources suchas databases and registries. One such tool that exists in the book publishing sector isARROW,the Accessible Registry of Rights Information and Orphan Works. It is hoped thatother sectors will also develop similar central rights information databases. Doing so wouldgreatly simplify and streamline the conduct of a reliable diligent search.
Secondly, the directive establishes that if a diligent search does not yield theidentity or location of the copyright holder(s), the work shall be recognised as anorphan work.
This status shall then, by virtue of mutual recognition, be valid across theEuropean Union. This implies that once a work is recognised as an orphan work, it shall berecognised as such across the European Union and the organisations will be able to makeit available online in all Member States. The Directive also foresees the establishment of asingle European registry of all recognised orphan works that will be set up and run byOHIM, the European Trade Mark Office based in Alicante.
Thirdly, the proposal establishes the uses that can be made of the orphan works.
The beneficiary organisations will be entitled to use orphan works to achieve aims relatedto their public interest mission. They will be allowed to conclude public-privatepartnerships with commercial operators and to generate revenues from the use of orphanworks to cover the digitisation costs.The Directive also foresees a mechanism to allow a reappearing right holder to assert hiscopyright and thereby end the orphan work status.
5. What more can be done to promote digital libraries?
Orphan works, while important, are only one of the issues that digital libraries face in theirquest to make Europe's cultural heritage available online. The other issue is obtainingcopyright permissions for the online display of out-of-commerce works.Out-of-commerce works are works that are still protected by copyright but are no longercommercially available because the authors and publishers have decided neither to publishnew editions nor to sell copies through the customary channels of commerce. It is of crucial importance for a digital library project that out-of-commerce works are not leftbehind.

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