On Thursday, September 13, 2012, the European Parliament adopted a new directive stating that cinematographic and audiovisual works as well as phonograms that are protected by copyright but whose rights holders cannot be found could be made available to the public across the EU.
Orphan Works and the Legal Problem They Introduced for Online Digital Libraries and Archives
“Orphan works” are works such as books, newspapers and magazine articles, films, and sounds that are protected by copyright, but whose authors are not known or cannot be located or contacted to obtain permission for their use.
Prior authorization is necessary to make copyright-protected works available to the public in an online digital library or archive. When the relevant copyright owner cannot be identified or found, the work in question becomes “orphaned”. As a result, the required authorization for making the works available online cannot be obtained.
Consequently, libraries or other institutions that make copyrighted works available online to the public without prior authorization are vulnerable to legal action for copyright infringement.
The Context of the Directive’s Proposal
This directive was proposed against the backdrop of the Commission’s 2006 Recommendation which advised member states to use the Internet to optimize the economic and cultural potential of Europe’s cultural heritage. As previously reported by IP Osgoode, this legislation was submitted in 2011 in order to remedy the absence of a legal framework governing the lawful, cross-border, online access to orphan works contained in European libraries and archives.
Copyright Will be Protected by “Diligent” Searches
Under Article 2 of this new directive, a work would be deemed to be "orphan" if a "diligent" search is (1) made in good faith and (2) fails to identify or locate the copyright holder. Article 3 of the legislation lays down criteria for conducting such searches.
Works granted orphan status would then be made public, for non-profit purposes only, through digitization. A work deemed to be an "orphan" in any one Member State would then qualify as an "orphan" in all EU states. This applies to any audiovisual or printed material, including a photograph or an illustration embedded in a book, published or broadcast in any EU country.
Rightful Copyright Holders Can Claim Compensation for their Orphaned Works
Legislators agreed that the rightsholder should be entitled to put an end to the orphan status of a work at any time and claim appropriate compensation for the use made of it (article 6(5)). However, in order to protect public institutions, the provisions of this directive are designed to ensure the compensation payments remain small. Compensation would have to be calculated on a case by case basis, taking into account the actual damage done to the author's interests and the fact that the use was non-commercial.
The text also includes an article (article 6 (2)) allowing public institutions to generate some revenue from the use of an orphan work (e.g. goods sold in a museum shop) provided that this revenue is used to pay for the search and the digitization process.
Overview of the Directive’s Relevant Articles
Article 1 - sets out the scope and subject matter of the Directive as a variety of material contained in public libraries, educational establishments, museums and archives as well as in the collections of film or audio heritage institutions and archives of public service broadcasting organisations.
Article 2 - contains the definition of an orphan work and incorporates the requirement of a diligent search.
Article 3 - explains how the diligent search is to be carried out by those who are permitted to use orphan works. It states that a diligent search need only be carried out in the Member State of first publication of the work.
Article 4 - establishes the principle of mutual recognition whereby a work deemed to be an orphan work after a diligent search carried out in accordance with Article 3 shall be considered an orphan in all Member States.
Article 5 - concerns the possibility to put an end to the orphan work status.
Article 6 - lists the uses that the named beneficiaries are permitted to undertake with respect to orphan works.
Articles 7 to 10 - specifies how the Directive deals with existing legal provisions pertaining to Orphan Works of member states.
Resulting Issues
Certain groups such as GESAC have praised this new directive as a positive starting point in the search for "a fair balance between the interests of the general public in accessing orphan works and the interests of authors in benefiting from the economic advantages derived from the exploitation of their works".
On the other hand, others have raised concerns that this new legislation indicates the start of a slide down a slippery slope towards laws that support Big Culture and take advantage of small-time creators whose works can easily become anonymous on the internet.
Areas for Further Research
In Canada S 77 (1) of the Copyright Act does allow the Copyright Board to issue licences for works whose owners cannot be found provided that a "reasonable effort" has been made to locate them-- so it would appear that the EU decision has little to offer our homegrown regime. However, Canadian law makers and legal academics may wish to take note of the Orphan works debate across the pond given that recent studies, such as the de Beer & Bouchard paper published in 2009, seem to suggest that there has been relatively little academic study of how the Canadian Copyright board has been handling orphan works. In their study, de Beer and Bouchard concede that while they have provided a closer examination of Canada's orphan works regime, more work needs to be done to evaluate its efficacy.
Takeaway for Canadians
As the internet continues to grow as a forum for defining the identities of individuals, corporations, and even states, the European debate about Orphan Works raises some interesting questions for Canadians. Should Canadian public institutions follow the European push to make our national heritage available online? What steps are we taking to ensure those who would protect this public interest are themselves protected from legal sanction? What steps could we take to prevent works from becomming orphaned unnecessarily?
Beatrice Sze is a JD Candidate at Osgoode Hall Law School.