Abstract:

This contribution describes and critically assess the recently released draft proposal for a so-called “European orphan works Directive” and the impact assessment study preceding this draft.
For some time now, the orphan works problem has its place on the agenda of the European Commission. Orphan works are copyright protected works of whom the copyright holder(s) cannot be identified or located. Problems with regard to this type of works arise when “users” wish to exploit these orphan works beyond the scope of existing copyright exceptions. For those forms of exploitation the general rule of a prior consent of (all) the copyright (and neighboring right) holders prevails.
Typical users of orphan works are cultural organizations, such as museums, public libraries, film heritage institutions, photo archives, educational institutions, etc. These cultural institutions welcomed the new digital reproduction and distribution technologies as an economically feasible way to revive their collections. The internet, as a platform to reach a large public at a continuously decreasing cost, seemed the perfect solution for organizations who work with a limited, subsidized budget. The limitations imposed by copyright to the free and unbridled use of these technologies cooled down their initial enthusiasm. Not only do they often lack the technical and legal knowledge to set up a digital platform which is in line with the existing copyright framework, they also lack the expertise to negotiate with copyright holders and their representing organizations, the collective rights managers (hereinafter referred to as “CRM’s”).
The existing copyright exceptions have been redrafted in 2001 according to the technological needs and possibilities at that moment. Although they are numerous, the exceptions are rather limited in scope and do not provide a lot of options for unrestricted online use of copyright protected works. With regard to orphan works it is exactly this online distribution of orphan works that cultural organizations envisage.
Following the obligatory rounds of stakeholder consultations and “soft law initiatives”, the European Commission is slowly trying to put some binding European legislation in place to solve the problem in a harmonized way. In the context of the European Digital Agenda, the European Commission recently launched a Proposal for a Directive concerning the use of orphan works (hereinafter referred to as the “Proposal”). The Proposal is accompanied by an impact assessment (hereinafter referred to as “IA”) of solutions existing in literature or in different national legislations. The Proposal contains a first draft of a European solution to the orphan works problem, the IA explains the Commission’s choice for a particular solution.
This contribution will investigate the place of this draft within the existing European copyright acquis and formulate some ideas for improvement or balanced implementation of this future piece of European legislation.

Keywords:

Copyright, orphan works, cultural organizations.