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European Commission proposes law allowing 'orphan works' to be available online across Europe

Copyright material with unknown owners should be made available for use in online digital libraries, the European Commission has said.27 May 2011

The Commission has proposed plans for a new EU Directive governing how 'orphan works' should be archived by public organisations across Europe. Orphan works are copyrighted material, such as books, films and music, which have no identified owner.

The Commission is proposing that orphan works are digitised and made available online in all EU countries, regardless where the work originates from.

The main objective of this proposal is to create a legal framework to ensure the lawful, cross-border online access to orphan works contained in online digital libraries or archives ... when such orphan works are used in the pursuance of the public interest mission," the European Commission's Directive proposals (15-page / 54KB PDF) said.

"A common approach to determine the orphan status and the permitted uses of orphan works is necessary to ensure legal certainty in the internal market with respect to the use of orphan works by libraries, museums, educational establishments, archives, film heritage institutions and public service broadcasting organisations," the Commission said.

At the moment many orphan works lie in storage in libraries and other institutions and because of copyright law cannot be digitised or used without permission. The Commission wants to make it possible for public organisations to digitise the material without having to gain the consent from the unknown owner.

EU countries should give out permits to organisations to allow them to digitise orphan works, the Commission said. Permits should only be granted to "publicly accessible libraries, educational establishments or museums as well as by archives, film heritage institutions and public service broadcasting organisations," the Commission's proposed Directive sets out.

Organisations must conduct a "diligent search" for the owner of the works' copyright before digitising the material, the Commission's proposal said.

"A diligent search should involve the consultation of publicly accessible databases that supply information on the copyright status of a work," the Commission said.

A search for the unknown owner of copyright works is the responsibility of designated organisations in the country where the material was first published or broadcast, the Commission said.

The search results should be made available for others to see, the Commission said.

"Once the diligent search establishes the 'orphan status' of a work, the work in question will be deemed an orphan work throughout the EU, obviating the need for multiple diligent searches," the Commission's proposals said.

"On this basis, it will be possible to make orphan works available online for cultural and educational purposes without prior authorisation," the Commission said.

Organisations that utilise orphan works must record their use on a central database for others across Europe to see, the Commission said.

"In order to avoid duplication of costly digitisation, Member States should ensure that use of orphan works ... is recorded in a publicly accessible database," the Commission said.

People who prove they own orphan works are entitled to compensation, the Commission said.

"It is appropriate to provide that authors are entitled to put an end to the orphan status in case they come forward to claim their works. Right holders who come forward to claim their works should be remunerated," the Commission's plans said.

The Commission said it was looking to create the new law on orphan works in order to overcome a "major impediment" to new digital libraries being created.

"A coherent EU framework for online access to orphan works is the least intrusive option to achieve the desired result," the Commission said. "All other approaches would require significantly more administrative overhead and licensing infrastructures just for orphan works," it said.

In an explanation to citizens about why it believes a new law for orphan works is needed, the Commission said Europe needed to "catch up" with the US approach to digital libraries.

"For years, US internet company Google has been actively creating digital libraries of printed works that can be consulted using its search engine technology," the Commission said in its citizens' summary (2-page / 31KB PDF).

Researchers and academics would benefit from the creation of online libraries, the Commission said.

"The creation of large online libraries facilitate electronic search and discovery tools which open up new sources of discovery for researchers and academics that would otherwise have to content themselves with more traditional and analogue search methods," the Commission's proposals said.

The Commission said its proposed Directive is a "key element" of its Digital Agenda plans. The European Commission launched Digital Agenda in 2010 with the aim of improving growth and strengthening existing laws in the internet age by 2020.

The Commission anticipates that its Directive will be adopted in 2012, after consideration in the European Parliament and by the Council of Ministers. EU countries must pass their own laws to implement the Directive within 18 months of its adoption.