“If you expect nothing from anybody, you’re never disappointed”

Orphan works in the EU and UK

Eleonora RosatiCIPIL Intellectual Property Seminar

14 November 2013

What are OWs?

Works for which no rightholders has been identified or, even if one or more of them has been identified, none has been located despite conduction of a diligent search.

Summary

• Why are OWs a problem?

• How to legislate in this area?

• The OW Directive

• Independent national initiatives: the case of the UK

So, why are OWs a problem?

• Potential users unable (impossible or excessively difficult) to obtain authorisation to use such works = risk of © infringement.

• EU Commission: Demand for dissemination of content of an educational, historical or cultural value at a relatively low cost to a wide audience online.

The “usual” OW numbers

• British Library estimates that 40% of works in its collections are orphans.

• Over 1 million hours of TV programming from BBC archives not used due to the impossibility, or the disproportionate cost, of tracing rightsholders + risk of subsequent legal actions.

Bill Patry (How to Fix Copyright):– © duration (US Supreme Court in

Golan v Holder, 2012);– Lack of formalities (Article 5(2)

Berne);– Instant world-wide content

distribution.

At least 3 elephants in the OW room

Are OWs the new black?

EU, UK, US …

• Specific © exception to create “a legal framework to facilitate the digitisation and dissemination of works”: Directive 2012/28/EU (OWD)

• Allowing OW use by means of licensing since “it benefits no-one to have a wealth of copyright works be entirely unusable”: UK Enterprise and Regulatory Reform Act 2013 (ERRA)

• Room for some formalities (Berne term)– Maria Pallante (US Register of Copyrights): shift the burden of the

last 20 years from the user to the © owner, so that © owners would have to assert their continued interest by registering with the US Copyright Office.

The Orphan Works Directive

Deadline for implementation:

29 October 2014

Subject-matter

• Works and phonograms :i. first published in a MS or, ii. in the absence of publication, first broadcast in a MS or, iii. in the absence of publication or broadcast, made publicly accessible by

the beneficiaries of the Directive with the consent of the rightholders

• Literary, cinematographic and audiovisual works and phonograms in the collections of publicly accessible libraries, educational establishments, museums, film and audio heritage institutions, and public service broadcasting organisations established in the EU.

• No stand-alone photographs and other images but possible future inclusion.

Beneficiaries

• One of the early reasons for adopting an EU directive was to favour:– Development of attractive content offers like the Google Books

Library Project, and so– EU competitiveness.

• But: only publicly accessible libraries, educational establishments, museums, archives, film or audio heritage institutions and public-service broadcasting organisations in order to achieve aims related to their public-interest missions.

• Commercial undertakings excluded from beneficiaries.– Public/private partnerships for digitisation and making available to

the public of orphan works.

Permitted uses

• Reproduce and make available to the public orphan works .

• Member States shall adopt a specific exception or limitation to the rights envisaged in Articles 2 and 3 of the InfoSoc Directive.

• “Diligent search” (national implementations).

• Commercial exploitation for the exclusive purpose of covering the costs of digitising and making orphan works available to the public.

Conclusion: Perfect?

• Limited beneficiaries – Cf early justifications for EU intervention.– Public/private partnerships will be the norm?

• Limited uses– Scanning and placing works on the internet.– No widespread commercial exploitation. – But (at least?): Cross-border recognition OW status.

• When is a search “diligent”?

• National initiatives– Rights management;– To address larger mass digitisation issues, eg out-of-

commerce works.– But:

Are Member States free to legislate autonomously in the area of orphan works?

The ERRA & new Section 116(A) CDPA

Subject-matter

• No restrictions as to the types of works that might be subject to the OW treatment.

• Stand-alone photographs and other images may fall within the scope of Section 116A CDPA implementing regulations.

• Published and unpublished works.

• Including non-UK or -EU works.

Beneficiaries

• No restrictions as to potential beneficiaries of Section 116A implementing regulations.

• So also commercial undertakings.

Permitted uses

• Grant of licences to do, or authorise the doing of, any act restricted by copyright. – But licensing body may be required to consider any

potentially derogatory alterations.

• Diligent search (may involve searching abroad).

• ERRA silent as regards the possibility of allowing commercial use, but why not?

Conclusion: taken a lead?

• ERRA much broader than OW Directive– Does ERRA supersede OW Directive, at least for works to be

exploited in the UK?

• Does the Directive allow broad independent national initiatives in the area of OWs?

• What if other MSs followed UK example?– Would OWD implementation be meaningful?– Would effectiveness of EU action in the area of OWs be

impaired?

• Do such initiatives violate principle of EU pre-emption?

Some questions

Why Sylvia Plath quote

• Not just because 50th anniversary …

• Great expectations about OWD– But very limited instrument

• Wait for national implementations but national initiatives like UK one are quite telling …

• Has the OW problem been solved in the EU?

Any questions?

Any Questions?

Thank you

25

Thanks for your attention!

eleonorarosati@gmail.com

@eleonora_rosati