|European Union directive|
|Made by||European Parliament & Council|
|Made under||Article 53(1), 62 and 114|
|Journal reference||L299, 27 October 2012, pp. 1–8|
|Date made||25 October 2012|
|Came into force||29 October 2014|
|Implementation date||30 October 2014|
The directive sets out common rules on the digitisation and online display of orphan works.
It is implemented in the UK with the Copyright and Rights in Performances (certain permitted use of orphan works) regulation 2014.
Orphan works are works like books, newspaper articles, or films, which may be protected under copyright but for which the copyright holder cannot be found. A substantial portion of the collections of Europe's cultural institutions are orphan works (e.g. the British Library estimates that 40 per cent of its copyrighted collections, 150 million works in total, are orphan works). Orphan works are not available for legal use by filmmakers, archivists, writers, musicians, and broadcasters. Public libraries, educational institutions and museums, that digitise old manuscripts, books, sound recordings and film, may choose to not digitise orphan works, or make orphan works available to the public, for fear that a re-appearing rights-holder may sue them for damages.
Works Covered by the Directive
This directive applies to the following orphan works that were created in the EU:
- printed works (books, journals, magazines and newspapers)
- cinematographic and audio-visual works
- works embedded or incorporated in other works or phonograms (e.g. pictures in a book)
Under certain conditions, the directive can also apply to unpublished works (such as letters or manuscripts). If orphaned software and video games ("Abandonware") fall under the audiovisual works definition is debated.
The directive provides regulations on how to identify orphan works. An organisation that wishes to digitise a work in question has to conduct a scrupulous search to find its copyright holder. In this search, it should rely on sources such as databases and registries like ARROW for text and image-based works. A registry for orphan film is currently developed by ACE – Association of European Film Archives and Cinematheques in the FORWARD project. It is hoped that other sectors will develop similar information databases.
The directive also establishes that if a search does not find the identity or location of the copyright holder, the work shall be officially recognised as an orphan work. This status shall be valid for the whole of the European Union, which means the organisation will be able to make it available online in all Member States. The directive also foresees the establishment of a single European registry of all recognised orphan works that will be set up and run by EUIPO, the European Union Intellectual Property Office based in Alicante.
Works identified as orphan works can be used by beneficiary organisations to achieve aims related to their public interest mission. They will be allowed to conclude public-private partnerships with commercial operators and to generate revenues from the use of orphan works to cover digitisation costs.
Under this directive, a reappearing copyright-holder can assert his/her copyright and thereby end the orphan work status.
- "Orphan works". European Commission. Retrieved 27 May 2014.
- "Memo – Orphan works – FAQ". europa.eu. European Commission. Retrieved 27 May 2014.
- Netanel, Neil (2008). Copyright's paradox. Oxford University Press US. p. 200. ISBN 978-0-19-513762-0.
- Borgman, Christine L. (2007). Scholarship in the digital age: information, infrastructure, and the internet. MIT Press. p. 108. ISBN 978-0-262-02619-2.
- Maier, Henrike (2015). "Games as Cultural Heritage Copyright Challenges for Preserving (Orphan) Video Games in the EU" (PDF). JIPITEC. Humboldt Universität zu Berlin. p. 120. Retrieved 18 January 2016.