Have EU orphans found a caring home?

As promptly reported yesterday by the IPKat, the Orphan Works Directive has just been published in Official Journal of the European Union, thus becoming Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works. This Kat agrees with Jeremy that there’s plenty of material for preliminary references to the Court of Justice of the European Union, as the various provisions in the Directive look, to say the least, open to various interpretations.

As IPKat readers will remember, the reasons for adopting such a Directive were clarified by the Commission last year, both in its blueprint on IP rights and the Impact Assessment accompanying the proposal. In the first document, it was pointed out that:

“Facilitating the preservation and dissemination of Europe’s rich cultural and intellectual heritage and encouraging the creation of European digital libraries [also through the ARROW project] is key for the development of the knowledge economy. Innovative licensing solutions [facilitating licensing across the EU seems now Commission's No 1 priority: see here] are needed to promote the seamless sharing of knowledge and culture that allow academic institution, businesses [such as Google: see further below], researchers and private individuals to lawfully use copyright-protected materials while compensating authors, publishers, and other creators for the use of their works.”

What the Commission had in mind became slightly clearer in the Impact Assessment accompanying the proposed directive. There the Commission made no mystery of the fact that, besides enhancing European Digital Library projects and the broader objectives relating to a Digital Agenda for Europe and an EU digital single market, by adopting such a Directive Europe could have avoided the situation resulting from the US Google Books Settlement [as far as this Kat knows, unlike Europe, in the US no orphan works legislation is currently being discussed], in particular the fact that in its original formulation orphan works were to be automatically included in the scope of the Google Books Settlement [cf the different features of the settlement achieved a few months ago by Google and relevant French publishers here – for the latest developments on the US side of this saga, see IPKat report here]. Furthermore, as was pointed out in the press releaseaccompanying the informal deal concluded by MEPs and the Council at the beginning of the summer, in the US “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.”

Martini.
Shaken, not stirred.

As reported by the IPKat (here, here, here ...), following the publication of the proposed directive, this has been subject to a series of amendments, in particular in relation to the following: right to compensation should the copyright owner show up; possibility to generate some revenue from the use of an orphan work; notion of diligent search; how to end the orphan work status.

Now that the final text of the Directive has been published, this Kat has read its recitals and provisions and has to confess that she has found some of these as including more intrigues and mysteries than new 007 film Skyfall. In particular:

Recital 1 (see also Recital 9 and Article 1): “Publicly accessible libraries, educational establishments and museums, as well as archives, film or audio heritage institutions and public-service broadcasting organisations, established in the Member States, are engaged in large-scale digitization …” [are they the only ones? There is someone else that is equally engaged in large-scale digitisation of works and is missing from here. Indeed, if you look for the fairly neutral word ‘businesses’, you will find it nowhere in the text of the Directive. Does this mean that, somewhat in contrast with what was stated by the Commission to justify the adoption of the Directive, businesses like Google will not be able to benefit directly from the Directive but only through previous orphan work status determination by the organisations listed therein?]

Recital 5: “Copyright is the economic foundation for the creative industry, since it stimulates innovation, creation, investment and production. Mass digitisation and dissemination of works is therefore [what is the logical link?] a means of protecting Europe's cultural heritage. Copyright is an important tool for ensuring that the creative sector is rewarded for its work.” [Merpel is slightly appalled at the way this recital is written and has no clue about its meaning]

"I tried but the line was busy":
Benedict is confident that this will suffice
as a diligent search

Recital 6: [Should you have any doubts, please be informed that] “The rightholders' exclusive rights of reproduction of their works and other protected subject-matter and of making them available to the public, as harmonised under Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society [the InfoSoc Directive], necessitate the prior consent of rightholders to the digitisation and the making available to the public of a work or other protected subject-matter.”

Recital 12: “For reasons of international comity [Merpel is not sure this is the only reason], this Directive should apply only to works and phonograms that are first published in the territory of a Member State or, in the absence of publication, first broadcast in the territory of a Member State or, in the absence of publication or broadcast, made publicly accessible by the beneficiaries of this Directive with the consent of the rightholders. In the latter case, this Directive should only apply provided that it is reasonable to assume [how can you prove this?] that the rightholders would not oppose the use allowed by this Directive.”

Recitals 17 and 18 (and Article 2): “There can be several rightholders in respect of a particular work or phonogram, and works and phonograms can themselves include other works or protected subject-matter. This Directive should not affect the rights of identified and located rightholders. If at least one rightholder has been identified and located, a work or phonogram should not be considered an orphan work … Rightholders should be entitled to put an end to the orphan work status in the event that they come forward to claim their rights in the work or other protected subject-matter …” [this looks sensible, says Merpel. As IPKat readers will remember, there was a time when the idea was that “A work shall cease to be an orphan work only if all the rightholders to that work are identified and located.”]

Recital 19: “If a work or phonogram has been wrongly found to be an orphan work, following a search which was not diligent, the remedies for copyright infringement in Member States' legislation, provided for in accordance with the relevant national provisions and Union law, remain available.” [making insufficiently diligent search akin to copyright infringement as far as possible remedies are concerned will probably be a good reason for potential defendants to keep litigating vigorously until the CJEU thoroughly clarifies the criteria for considering a search as diligent]

Clear case of diligent search
in which the rightholder was known
but could not be located

Recital 20 and Article 6: “In order to promote learning and the dissemination of culture, Member States should provide for an exception or limitation in addition to those provided for in Article 5 of Directive 2001/29/EC …” [but isn’t the Commission committed to review the set of exceptions and limitations envisaged in the InfoSoc Directive shortly?]

Article 2(1): “A work or a phonogram shall be considered an orphan work if none of the rightholders in that work or phonogram is identified or, even if one or more of them is identified, none is located …” [is the latter a likely scenario? Merpel finds it difficult to believe that a search can be considered diligent if one knows who the copyright owner is]

Article 6(2): “The organisations … shall use an orphan work … only in order to achieve aims related to their public-interest missions, in particular the preservation of, the restoration of [this is tricky, says Merpel. Restoration may raise moral rights issues, and in some Member States moral rights enjoy high (and somewhere perpetual) protection. So, is it advisable to proceed with restoration of orphan works, including those whose copyright owners are known but cannot be located?], and the provision of cultural and educational access to, works and phonograms contained in their collection …”

Article 6(5): “Member States shall provide that a fair compensation is due to rightholders that put an end to the orphan work status of their works or other protected subject-matter for the use that has been made … Member States shall be free to determine the circumstances under which the payment of such compensation may be organised. The level of the compensation shall be determined, within the limits imposed by Union law, by the law of the Member State in which the organisation which uses the orphan work in question is established.” [would have not been better if the Directive had set some parameters to this end? Otherwise there may be the risk of race-to-the-bottom scenarios, by making certain Member States more appealing (as well as less risky because cheaper) than others for reasons of orphan work status determination and possible litigation]