Directive 2012/28/EU

Directive 2012/28/EU is a directive of the European Parliament and European Council enacted on 25 October 2012 that pertains to certain uses of orphan works.^[1]

The directive sets out common rules on the digitization and online display of orphan works.^[1]

It is implemented in the UK with the Copyright and Rights in Performances (certain permitted use of orphan works) regulation 2014.

Basis

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).^[2] Orphan works are not available for legal use by filmmakers, archivists, writers, musicians, and broadcasters. Public libraries, educational institutions and museums, that digitize old manuscripts, books, sound recordings and film, may choose to not digitize orphan works, or make orphan works available to the public,^[3] for fear that a re-appearing rights-holder may sue them for damages.^[4]

The EU has set out large-scale digitization programs (such as Europeana) and in order for these programs to be successful, common rules on how to deal with orphan works need to be established.^[2]

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
• phonograms
• 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Under certain conditions, the directive can also apply to unpublished works (such as letters or manuscripts).^[2] If orphaned software and video games ("Abandonware") fall under the audiovisual works definition is debated.^[5]

Function

The directive provides regulations on how to identify orphan works. An organization that wishes to digitize 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 ^[6] 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.^[7] It is hoped that other sectors will develop similar information databases.^[2]

The directive also establishes that if a search does not find the identity or location of the copyright holder, the work shall be officially recognized as an orphan work. This status shall be valid for the whole of the European Union, which means the organization 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 recognized orphan works that will be set up and run by OHIM, the European Trade Mark Office based in Alicante.^[2]

Works identified as orphan works can be used by beneficiary organizations 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 digitization costs.^[2]

Under this directive, a reappearing copyright-holder can assert his/her copyright and thereby end the orphan work status.^[2]

References

External links

• Directive 2012/28/EU
• Orphan works – FAQ from the European Commission

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