Photos, films or poems protected by copyright but whose right holders cannot be found could be made available to the public across the EU, under new legislation approved by Parliament on Thursday. The directive will allow anyone to access so-called orphan works, taking forward the project of making Europe’s cultural heritage available online.
The text, approved by 531 votes to 11, with 65 abstentions, and informally agreed by Parliament and Council, aims to make it safer and easier for public institutions such as museums and libraries to search for and use orphan works.
Today, digitising an orphan work can be difficult if not impossible since, in the absence of the right holder, there is no way to obtain permission to do so. The new rules would protect institutions that use orphan works from future copyright infringement claims.
“Diligent” searches to protect copyright
Under the new rules, a work would be deemed to be “orphan” if a “diligent” search made in good faith failed to identify or locate the copyright holder. The legislation lays down criteria for carrying out such searches.
Works granted orphan status would be then be made public, for non-profit purposes only, through digitisation. A work deemed to be “orphan” in any one Member State would then qualify as “orphan” throughout the EU. This would apply to any audiovisual or printed material, including a photograph or an illustration embedded in a book, published or broadcast in any EU country.
Compensation if copyright holder shows up
MEPs agreed that the right holder 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.
They nonetheless inserted a provision to protect public institutions from the risk of having to pay large sums to authors who show up later. Compensation would have to be calculated case by case, taking account of the actual damage done to the author’s interests and the fact that the use was non-commercial. This should ensure that compensation payments remain small.
At the insistence of MEPs, the text includes an article to allow public institutions to generate some revenue from the use of an orphan work (e.g. goods sold in a museum shop). All of this revenue would have to be used to pay for the search and the digitisation process. Here to read more.