The European Parliament has officially mandated the commencement of discussions with the Council of Ministers for agreement on a legislation that ensures cross-border online access to orphan works. This includes any audiovisual or printed material, including a photograph or an illustration embedded in a book, published or broadcast in any EU country.
“Orphan works” is a phrase used to point to situations in which the owner / right holder of a copyrighted work cannot be identified and traced by an interested party who wishes to use the creation in a way that requires consent of the right holder.
This proposal comes in the wake of a Google project to digitise and share books, including orphan works, which project was blocked after cases for IP infringement were filed against the company.
The aim of this legislation is to address the requirement of prior authorisation that is necessary to make works protected by copyright available to the public in the digital environment. Since in the case of orphan works, the right-holder of such copyright is not verifiable, institutions engaging in digitisation of works are not in a position to obtain the authorisation necessary.
Upon adoption, the new EU legislation would protect institutions using orphan works from future copyright infringement claims that may arise from digitising a work that had been deemed orphan. According to the approved text, a work would be deemed orphan if after a “diligent” search, the copyright holder could not be identified or located. Once granted orphan status in one member state, works would be deemed orphan in all member states.
The current plans are that, once identified, the right holder is entitled to put an end to the orphan status of a work at any time and claim compensation.
