The European Commission put forward the proposal for a directive on certain permitted uses on 24 May 2011.
The author of a work has an exclusive right of reproduction and a right of communication to the public. Technically, the author’s prior permission is required when someone wants to make copyright-protected works available to the public via an online digital library or archive. If the corresponding copyright holder cannot be identified or found (so-called ‘orphan works’), it is not possible to obtain their permission to use these orphan works. Institutions that make works available to the public without obtaining prior permission of the copyright holder, run the risk of violating copyright.
As the Commission thinks that the issues with orphan works seriously limit online sharing by digital libraries (at least with regard to protected works of the 20th and 21st century), a harmonised EU framework that recognises the ‘orphaned work’ status and that defines the permitted uses of these works would improve the legal certainty in this field, as well as facilitate the online accessibility of these works.
The main purpose of the proposal for a directive is to provide a legal framework to secure the lawful and cross-border online access to orphaned works that have been included in online digital libraries or in archives managed by various specific institutions, when such orphaned works are used for the ‘public interest’ mission of these institutions. This mission of public interest is aimed at education, as well as the preservation and dissemination of cultural heritage, among others.
Seen as it is impossible to continually consult the Intellectual Property Council on a constantly evolving text, the Council has taken into account the draft directive as modified on 12 December 2011, as well as the initial text of the proposal for a directive, when drawing up this opinion.
The Council discussed the proposal for a directive during the meetings on 14 September, 21 October, 23 November, 19 December 2011 and 8 March 2012. The opinion was adopted by the Council on 28 March 2012.
Representatives of the Communities responsible for Education and Culture have also been invited to partake in these meetings, since they are in charge of the institute categories listed in article 1.1 of the proposal for a directive. The representatives are: Ms COENEN, Cluster Manager for the Flemish Community, Department of Culture, Youth and Media; M. WALTERUS, staff member of FARO, the Flemish Institution for the Cultural Heritage; Ms LENTZEN, general delegate to the French Community for the digitalisation of cultural heritage; and Ms KRICK, legal expert for the French Community, General Department Audiovisual Sector.