On 4th October 2012, the Council finally adopted the Directive on certain permitted uses of orphan works. Directive 2012/28/EU officially entered into force on 25 October 2012. Member states will have to transpose the OWD into national legislation within two years.
On 24 May 2011, the European Commission adopted a Proposal for a Directive on certain permitted uses of orphan works with a view to establishing common rules on the digitisation and online display of so-called orphan works. Orphan works are works like books, published articles and films that are still protected by copyright but whose authors are not known or cannot be located or contacted to obtain copyright permissions.
According to a study ACE carried out among its member archives in 2009, about 21% of the films held in Europe’s film archives and cinematheques are estimated to be orphan works. But with no common rules available to make the digitisation and online display of orphan works legally possible, they are doomed to remain untouched and therefore inaccessible. In order to proceed with large-scale digitisation projects such as the Europeana portal, common guidelines on how to deal with such works are necessary.
The Proposal forsees a new EU law providing lawful, cross-border online access to orphan works. Libraries, museums and archives in the EU country where a work was first published would be required to conduct a thorough search to find the copyright holder before creating a digital version. If the rightholder cannot be identified or located, the work would be identified as an “orphan” and that status would apply throughout the EU so that the work could be made available online without prior authorisation until the owner is identified and found.
Although ACE highly welcomes the Proposal as offering legal backing for permitted and authorised uses of orphan works across Europe, there is a need to tailor the Directive more specifically to the needs of audiovisual works. ACE has drafted an official statement commenting on individual articles of the Proposal:
- Proposal for a Directive on Certain Permitted Uses of Orphan Works
- ACE Statement on the Proposal for a Directive on Certain Permitted Uses of Orphan Works
- Revised ACE Statement 15/02/2012
- ACE Statement on the European Parliament Draft Report 28/03/2012
Further information on the Proposal for a Directive on orphan works as well as other language versions of the related documents are available here.