Is it worth being an orphan? The EU gives some food for thought

The Kat, dispensing
client advice ...

Several times, in this Kat's legal practice to date, she has had to address her clients in words to the following effect: 'if permission is needed to use a copyright work, the fact that you canʼt identify or locate the copyright owner doesnʼt provide you with a legal defence to a claim of infringement'. She then advises that to use a copyright work without permission in these circumstances is taking a risk that the copyright owner might later on find out and commence infringement proceedings. Most clients then get frustrated and call copyright law the proverbial legal ass. However, help may now be at hand, at least in Europe, after news this week that draft EU legislation in relation to so called orphan works was informally agreed by the European Parliament and European Council.  According to the Press Release:

'Parliament's negotiating team secured provisions to make it safer and easier for public institutions such as museums and libraries to search for and use orphan works. These provisions include clear rules on compensation for right holders who come forward after a work has been placed on line and a possibility for institutions to use any revenue from its use to pay search and digitisation costs. Today, digitising an orphan work can be difficult if not impossible, since in absence of the right holder there is no way to obtain permission to do so. The new rules would protect institutions using orphan works from future copyright infringement claims, and thus avoid court cases like that in the US, in which a Google project to digitise and share all kinds of books, including orphan works, was blocked on the grounds that the orphan works question should be settled by legislation, not private agreements' [Merpel finds this an interesting description of the Google Book litigation; she wonders whether readers of this blog would agree with it].

To this Kat, this raised three questions: (1) how does a copyright work attain orphan status? (2) what use can one make of an orphan work? and (3) what happens if the copyright owner later shows up to un-orphan the work?

1. Attaining Orphan Status

The Kat .. looking diligent

A work will be treated as an orphan if, after a diligent search made in good faith, it was not possible to identify or locate the copyright owner. The draft legislation sets out criteria for conducting this search, but this Kat could not see any corresponding criteria for evaluating whether such a search is 'diligent'. According to the Press Release, orphan works can be 'any audiovisual or printed material, including a photograph or an illustration embedded in a book, published or broadcast in any EU country. It would also apply to works not published but nonetheless made available by institutions, provided that they could reasonably assume that the right holder would not object to this act'. This Kat cannot help but wonder how, if one cannot identify or locate a copyright owner, anyone can reasonably assume that the copyright owner would not object?

2. Use of Orphan Works

If a work attains orphan status, it can only be used for non-profit purposes. This is subject to the exception that public institutions can generate some revenue from the use of an orphan work (for instance where goods are sold in a museum shop). However, any revenue so generated could only be used to pay for the administrative costs associated with attaining orphan status.

Any work which has attained orphan status in any one Member State has the same status throughout the rest of the EU [Aha, says Merpel, will we now have the chance of orphan-shopping ...?].

3. If the copyright owner shows up ...

The copyright owner, if he shows up, will be entitled to terminate the orphan status of a work and claim an appropriate compensation for the use made out of it. However, to protect against public institutions from the risk of having to pay large sums to copyright owners who show up later, such compensation is to be calculated on a case by case basis, taking into account the actual damage done to the copyright owner's interests and the fact that the use was non-commercial [including sales in museum shops, which are presumably deemed non-commercial in respect of orphan works but commercial in respect of non-orphan works, an interesting concept]. The purpose behind such a provision is to ensure that compensation payments remain small. This Kat again notes the vague concept of 'actual damage' and wonders whether it is possible to have non-commercial use which does significant damage so as to be awarded more than a nominal payment. And if the payment is supposed to be nominal, does this mean that the legal fees to recover such payment are supposed to be equally 'small'?

4. ... and then?

Like Eleonora on her 1709 Blog post, this Kat was intrigued by the comment by Lidia Geringer de Oedenberg (right),who is steering the legislation through Parliament and led the negotiations, that the legislation on orphan works is intended to be a "first step towards harmonisation of copyright rules in the EU". The IPKat and Merpel ask what else is on the agenda?