EU Orphan Works Draft Disappointing, Some Lawmakers, Consumer Activists Say
EU lawmakers Thursday overwhelmingly approved a measure allowing access to works whose rights owners can’t be found, paving the way for digitization of orphan works. The draft directive, a “trilogue” compromise among the European Commission, European Parliament and Council of Ministers, will help public-service broadcasters, libraries, archives and similar institutions disseminate previously inaccessible content. It proves that copyright and technology can be brought together in the Internet age through working together, said European Health and Consumer Policy Commissioner John Dalli during a pre-vote parliamentary debate. He said the measure gives cultural institutions the legal certainty they need to make content available online. Some legislators and one consumer group called it disappointing.
Sign up for a free preview to unlock the rest of this article
If your job depends on informed compliance, you need International Trade Today. Delivered every business day and available any time online, only International Trade Today helps you stay current on the increasingly complex international trade regulatory environment.
The text, approved 531-11, seeks to make it safer and easier for public institutions such as museums and libraries to search for and use orphan works, Parliament said. Under the new rules, a work would be deemed orphan if a good-faith, diligent search fails to identify or locate the copyright holders. The legislation sets out criteria for such searches. Works given orphan status would then be made public, for non-profit purposes only, through digitization, it said. Content considered orphan in one EU member will be considered the same in all 27, it said. That applies to any audiovisual or printed material, including photographs or illustrations embedded in books published or broadcast in any EU country, it said.
If the copyright holder shows up, he can claim appropriate compensation for use of the work, Parliament said. In the case of public institutions using the content, however, compensation must be calculated on a case-by-case basis that takes into account the actual damage done to the author’s interests and that the use was noncommercial. That should ensure that compensation payments are small, Parliament said. The compromise also includes a provision allowing public institutions to make some money from the use of orphan works if the revenue is used to pay for the search and digitization process, it said.
Several European Parliament members, while praising the deal, said it doesn’t entirely resolve the problems raised by orphan works. The directive isn’t the end of the road, said Marielle Gallo, of France and the European People’s Party. The goal is to digitize Europe’s cultural heritage on a large scale, and the compromise shows that authors’ rights aren’t an obstacle but can respond to consumer demand, she said. Petra Kammerevert, of Germany and the Socialists and Democrats, said she doubts the directive deals with audiovisual works effectively. Such works usually have many more rights holders than written content, making it much more expensive and time-consuming to go through the orphan works process, she said.
The directive is an opportunity to deal with an ambitious EC proposal, and Parliament hasn’t fully seized it, said Eva Lichtenberger, of Austria and the Greens/European Free Alliance (Greens/EFA). The longer the term of copyright protection, the worse the problem is, and that applies to orphan works as well, she said. “The devil is really in the detail” in the directive, and the compromise has built in many stumbling blocks, she said. Some issues haven’t been resolved, but in the current situation, legal certainty for orphan works is needed, said Helga Trüpel, of Germany and the Greens/EFA. The compromise calls for the measure to be reassessed in two years and lawmakers can then decide what it has or hasn’t achieved, she said.
Several members voiced harsher opinions. The compromise clearly reflects the input of major lobby groups, said Charalampos Angourakis, of Greece and the European Group of United Left-Nordic Green Left (GUE) party. It’s just more profit-seeking by large-scale digitization outfits and opens the door to the commodification of orphan works, he said. It allows diligence searches to be conducted for payment and imposes high fees on those seeking access to the works, he said.
Marie-Christine Vergiat, of France and GUE, said her group would abstain from voting because the text leaves too many questions open. Evelyn Regner, of Austria and the Socialists and Democrats, said the deal has many “missteps” and should be reviewed in two years. She welcomed the rules calling for meticulous searches for rights owners and compensation rather than remuneration, but said those who try to locate rights owners have “Damocles swords” hanging over them and no legal certainty. The Council plans to formally adopt the directive, without discussion, at the Oct. 4 Employment and Social Policy Council meeting, a press officer told us.