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20120222-EU-Orphan works-Drafting Suggestions by the Belgian Delegation-ENG

20120222-EU-Orphan works-Drafting Suggestions by the Belgian Delegation-ENG

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Published by Axel Beelen
This is a copy of the modifications proposed by the Belgian delegation related to the Proposal for a Directive related to certain permitted uses of orphan works (ENG).
This is a copy of the modifications proposed by the Belgian delegation related to the Proposal for a Directive related to certain permitted uses of orphan works (ENG).

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Published by: Axel Beelen on Jun 30, 2012
Copyright:Attribution Non-commercial


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COUNCIL OFTHE EUROPEAN UNIONBrussels, 22 February 2012Interinstitutional File:2011/0136 (COD)6822/12LIMITEPI 23AUDIO 21CULT 29CODEC 466NOTE
from:General Secretariatto:Working Party on Intellectual Property (Copyright) No. Cion prop.:10832/11 PI 61 AUDIO 18 CULT 37 CODEC 926Subject:Proposal for a Directive of the European Parliament and of the Council on certain permitted uses of orphan works-Drafting suggestions by the Belgian delegationDelegations will find attached, for information, drafting suggestions prepared by the Belgiandelegation. __________________________6822/12SS/lo1DG C I
“ 2.The organisations referred to in Article 1(1) may only use an orphan work in accordance with paragraph 1 in order to achieve aims related to their public interest missions, notably preservation,restoration and the provision of cultural and educational access to works and phonograms contained in their collections, provided that the use does not conflict with the normal exploitation of the work or other subject matter and does not unreasonably prejudice the legitimate interests of therightholders.”
New recital (nr to be determined):
“The exception or limitation to the reproduction and the making available rights for the permitted usesunder the current Directive by publicly accessible libraries, educational establishments, or museums, as well as by archives, film or audio heritage institutions and public service broadcastingorganizations, of orphan works contained in their collections, shall only be applied if these uses donot conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder.”
The Belgian delegation proposes to delete the reference in Article 6(2) to the last two prongs of thethree-step test in the description of what constitutes permitted uses of an orphan work. A new recitalcould confirm the application of the three-step test to the exception.6822/12SS/lo2ANNEXDG C I
“ 5.Member States shall provide that a fair remuneration is due to rightholders that put an end tothe orphan status of their works and other protected subject matter for the use that has been made bythe organisations referred to in Article 1(1) of such works and other protected subject matter inaccordance with paragraph 1. Member States shall be free to determine this remuneration taking account of their cultural  promotion objectives. Member States may exempt certain categories of establishments from the payment of theremuneration.
Establishments, institutions and other beneficiaries referred to under Article 1(1) should be able tocontinue to pursue their public interest mission in the information society by engaging in digitizationand dissemination projects related to the cultural heritage they hold in their collections. Theintroduction of the principle of the payment of a remuneration for each use of an orphan work mayhamper this mission significantly.This is the reason why Belgium was opposed to the obligation of payment of any form of remuneration for the permitted uses of orphan works as provided for in Article 6(5).Moreover, the notion of “fair remunerationas provided for in the revised Danish Presidencycompromise proposal creates significant uncertainty and does not entail sufficient leeway for Member States to determine a remuneration in function of their cultural promotion objectives.Similarly, the Belgian delegation is of the view that the notion of “fair compensation” would not beappropriate in this context, since this is a notion which is intrinsically linked to specific exceptions tothe reproduction right (e.g. private copying and reprography, taking into account the prejudice to theright holder and the degree of use of technological protection measures). Following recent jurisprudence of the Court of Justice of the European Union in Case C-271/10, both concepts of “remuneration” and “compensation” are designed to establish recompense for authors (see 27- 29).Therefore, the notions of fair compensation and equitable/fair remuneration could be interpreted inthe same manner.Public interest institutions have never been submitted to such onerous obligations as a counterpart tothe exception they are benefiting from. The introduction of such notions would create a precedent inthe acquis communautaire related to copyright.6822/12SS/lo3ANNEXDG C I

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