EU Orphan Works directive implementation

The EU Directive 2012/28/EU sets out common rules on the digitisation and online display of so-called orphan works and should have been adopted into national legislation by 29 October 2014. Orphan works are works like books, newspaper, magazine articles and films that are still protected by copyright but whose authors or other rightholders are not known or cannot be located or contacted to obtain copyright permissions.

The table below indicates whether the Directive 2012/28/EU has been implemented into several national legislations and what are the differences in implementations.

CountryImplemented?By which law?Date of entry into force of national provision

Major differences from the EU directive

Implementation of art 3 (5) and (6) – diligent searches records
AustriaYes

Urheberrechtsgesetz(UrhG)

29.10.2014 (but published 13.01.2015)NoneYes
BulgariaYes

The Copyright and Neighbouring Rights Act has been amended to implement the Orphan Works Directive.

The legislative amendment included the drafting of a new chapter VIII with Articles 71b to 73h implementing the substantive provisions of the directive.

20.02.2015NoneYes - transposed in Article 71d, para 5 and para 6 of the Copyright and Neighbouring Rights Act.
Czech RepublicYesLaw No. 228/20147.09.2014None

Implemented. Steps to perform when the orphan work is found are defined in the law. No single methodology on how to perform diligent search is in use at the moment.

No orphan work from the Czech entitled institutions has been added to the OHIM database so far. Public awareness campaigns are currently being prepared.

FranceNo

Bill


 

The Minister of Culture and Communication presented a bill containing various adaptation measures to European Union law in the fields of literary and artistic property and cultural heritage.

The bill transposes three directives: firstly, that of 27 September 2011 modifying Directive 2006/116/EC on the term of protection of copyright and certain related rights.

The previous Community regulation set the term of copyright at 70 years, whereas that of related rights – i.e. performers, producers of phonograms, film producers and broadcasting organizations – was 50 years. Given the increase in life expectancy, these related rights for performers now expire during these artists’ lifetimes and at a time when they are generally no longer professionally active. The directive increases their term from 50 to 70 years. It has also sought to improve the economic system for producers, so that they can thus have the necessary resources to support new talent.

Secondly, the bill transposes Directive 2012/28/EU of 25 October 2012 on certain permitted uses of orphan works. It enables libraries accessible to the public to digitize works belonging to their collections and regarded as orphan – i.e. whose copyright- and related rights-holders it has been impossible to find, despite careful searches – and make them available to their users. These works are thus made accessible to the maximum number of people, thanks to digital support and in a non-profit framework. This faculty is also open to museums, archive services, the guardian institutions of cinema and sound heritage, educational establishments and public broadcasting bodies. The works concerned take the form of books, reviews, newspapers, magazines and other written publications, as well as cinema and broadcast works.

Finally, the bill transposes Directive 2014/60/EU on the return of cultural objects unlawfully removed from the territory of a member state. This revised instrument seeks to guarantee the return to a member state of any cultural object regarded as “a national treasure possessing artistic, historic or archaeological value” that was unlawfully removed from its territory after 1 January 1993.

Not implemented yet.
GermanyYesGesetz zur Nutzung verwaister und vergriffener Werke und weiterer Änderungen des Urheberrechtsgesetzes vom 1. Oktober 20131.01.2014

None

Yes, § 61a UrhG
ItalyYesLaw 163/2014 of November 10, 2014. As consequence of the adoption of the UE directive, the Law 633/41 has been amended (art. 69bis to septies have been inserted).25.11.2014None

The organizations carrying out diligent research have first to consult the Registro Pubblico Generale delle Opere protette, established at the MIBAC Italian Ministry for Cultural Activities and afterwards consult other appropriate sources. A data bank of the researches on orphan works has been established at the MIBAC. The results of the research activities have to be communicated as well to MIBAC. A work can be considered orphan, only if after 90 days from the publication of the diligent search outcomes on the MIBAC website, nobody has claimed a right on it.

Several cultural private and public institutions are allowed to carry out the reasonable research.
MaltaYesS.L. (subsidiary legislation) 415.05 Certain Permitted Uses of Orphan Works Regulations7.09.2014NoneSearches are to be sent to the National IP Office of Malta.
NetherlandsYes

https://zoek.officielebekendmakingen.nl/stb-2014-388.html

and

http://wetten.overheid.nl/BWBR0035690/geldigheidsdatum_21-01-2015
1.01.2015NoneImplemented
Romania

A proposed law for the transposition of Directive 2012/28/UE (PL-x nr. 395/2012) was adopted by the Romanian Senate in 2012.

However, in order to come into force, a law proposed in the Senate needs to undergo the scrutiny of a number of Parliamentary Committees and, subsequently, it needs to be upheld by the Chamber of Deputies.

Since 2013, the proposed law has not received a favorable opinion from the Budget, Finance and Banks Committee of the Parliament and, consequently, the Directive has not been implemented.

   

The Legislative Committee of the Parliament issued a negative comment on the provision in the law project correspondent to that of Art. 3(6) of Directive 2012/28/UE, namely that the proponents have failed to transpose into the project law the obligation for Member States to forward the information regarding diligent searches to OHIM without delay.

SpainNo (research still in progress)    
SwitzerlandNo – Switzerland is not obliged to implement EU directivesFederal Act on Copyright and Related Rights (Art. 22b)1992No common rules on digitisation and online displayNot applicable
United KingdomYes

Enterprise and Regulatory Reform (ERR) Act 2013

The Copyright and Rights in Performances (Licensing of Orphan Works) Regulations 2014

2014The UK orphan work scheme is wider in its scope and application and has been designed by the Government to be complementary to the Directive.
  • The Directive is narrower in its use and scope
  • It provides for an exception to copyright law rather than a licensing scheme as under the domestic process.
  • It focuses on the digitisation and making available online of orphan works by publicly accessible cultural and heritage bodies only for non commercial use – unlike the UK scheme which provides for broader commercial and non-commercial use.
  • It excludes stand alone artistic works such as photographs which constitute a large part of orphaned works in archives (however, embedded works, such as a photograph within a book, are included)
  • It allows for the reproduction and making available of a work for example to digitise a work and put it on a cultural institutions’ website. This will allow EU citizens to view orphan works online without physically visiting the library, archive or museum. However it does not provide for publication in a book or communication to the public by means of a TV programme - even by museums and archives.
  • The EU Orphan Works Directive allows use across the EU, but the UK scheme only allows use within the UK.

Implemented and compliant.  IPO provides guidance.  
Such searches must comprise a reasonable search of at least the following sources:

  • The IPO’s orphan works register;
  • The Office for Harmonization in the Internal Market’s (the OHIM) orphan works database; and
  • Any relevant sources listed in Part 2 of Schedule ZA1 of the Copyright, Designs and Patents Act 1988, which includes for example, library catalogues, databases of identifiers such as ISBN and ISAN numbers, and the databases of relevant collection societies.

 

 

Last updated 19 May 2017.

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Link - Posted on Friday 19 September 2014

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