This document summarizes a presentation on orphan works in the EU and UK. It discusses what orphan works are, why they are a problem, and how different jurisdictions have addressed them through legislation. The EU adopted the Orphan Works Directive, which allows certain organizations to use orphan works if they conduct a diligent search for rights holders. However, the Directive has limited scope. The UK took a broader approach through the Enterprise and Regulatory Reform Act, which allows both non-commercial and commercial use of orphan works under a licensing scheme. There are questions around whether this undermines the EU Directive and if other member states will follow the UK's lead on this issue.

1. “If you expect nothing from anybody,
you’re never disappointed”
Orphan works in the EU and UK
Eleonora Rosati
CIPIL Intellectual Property Seminar
14 November 2013

2. What are OWs?

3. Works for which
no rightholders
has been
identified or, even
if one or more of
them has been
identified, none
has been located
despite
conduction of a
diligent search.

4. Summary
• Why are OWs a problem?
• How to legislate in this area?
• The OW Directive
• Independent national initiatives: the case of
the UK

5. So, why are OWs a problem?
• Potential users unable (impossible or
excessively difficult) to obtain authorisation to
use such works = risk of © infringement.
• EU Commission: Demand for dissemination of
content of an educational, historical or
cultural value at a relatively low cost to a wide
audience online.

6. The “usual” OW numbers
• British Library estimates that 40% of works in
its collections are orphans.
• Over 1 million hours of TV programming from
BBC archives not used due to the impossibility,
or the disproportionate cost, of tracing
rightsholders + risk of subsequent legal
actions.

7. At least 3 elephants in the OW room
Bill Patry (How to Fix Copyright):
– © duration (US Supreme Court in
Golan v Holder, 2012);
– Lack of formalities (Article 5(2)
Berne);
– Instant world-wide content
distribution.

8. Are OWs the new black?

9. EU, UK, US …
• Specific © exception to create “a legal framework
to facilitate the digitisation and dissemination of
works”: Directive 2012/28/EU (OWD)
• Allowing OW use by means of licensing since “it
benefits no-one to have a wealth of copyright works
be entirely unusable”: UK Enterprise and Regulatory
Reform Act 2013 (ERRA)
• Room for some formalities (Berne term)
– Maria Pallante (US Register of Copyrights): shift the
burden of the last 20 years from the user to the © owner,
so that © owners would have to assert their continued
interest by registering with the US Copyright Office.

10. The Orphan Works Directive

11. Subject-matter
• Works and phonograms :
i. first published in a MS or,
ii. in the absence of publication, first broadcast in a MS or,
iii. in the absence of publication or broadcast, made publicly
accessible by the beneficiaries of the Directive with the
consent of the rightholders
• Literary, cinematographic and audiovisual works and
phonograms in the collections of publicly accessible
libraries, educational establishments, museums, film and
audio heritage institutions, and public service
broadcasting organisations established in the EU.
• No stand-alone photographs and other images but
possible future inclusion.

12. Beneficiaries
• One of the early reasons for adopting an EU directive
was to favour:
– Development of attractive content offers like the Google
Books Library Project, and so
– EU competitiveness.
• But: only publicly accessible libraries, educational
establishments, museums, archives, film or audio
heritage institutions and public-service broadcasting
organisations in order to achieve aims related to their
public-interest missions.
• Commercial undertakings excluded from beneficiaries.
– Public/private partnerships for digitisation and making
available to the public of orphan works.

13. Permitted uses
• Reproduce and make available to the public
orphan works .
• Member States shall adopt a specific exception or
limitation to the rights envisaged in Articles 2 and
3 of the InfoSoc Directive.
• “Diligent search” (national implementations).
• Commercial exploitation for the exclusive
purpose of covering the costs of digitising and
making orphan works available to the public.

14. Conclusion:
Perfect?

15. • Limited beneficiaries
– Cf early justifications for EU intervention.
– Public/private partnerships will be the norm?
• Limited uses
– Scanning and placing works on the internet.
– No widespread commercial exploitation.
– But (at least?): Cross-border recognition OW status.
• When is a search “diligent”?
• National initiatives
– Rights management;
– To address larger mass digitisation issues, eg out-ofcommerce works.
– But:

16. Are Member
States free to
legislate
autonomously
in the area of
orphan works?

17. The ERRA
& new Section 116(A) CDPA

18. Subject-matter
• No restrictions as to the types of works that
might be subject to the OW treatment.
• Stand-alone photographs and other images
may fall within the scope of Section 116A
CDPA implementing regulations.
• Published and unpublished works.
• Including non-UK or -EU works.

19. Beneficiaries
• No restrictions as to potential beneficiaries of
Section 116A implementing regulations.
• So also commercial undertakings.

20. Permitted uses
• Grant of licences to do, or authorise the doing
of, any act restricted by copyright.
– But licensing body may be required to consider any
potentially derogatory alterations.
• Diligent search (may involve searching abroad).
• ERRA silent as regards the possibility of allowing
commercial use, but why not?

21. Conclusion:
taken a
lead?

22. Some questions
• ERRA much broader than OW Directive
– Does ERRA supersede OW Directive, at least for works to
be exploited in the UK?
• Does the Directive allow broad independent
national initiatives in the area of OWs?
• What if other MSs followed UK example?
– Would OWD implementation be meaningful?
– Would effectiveness of EU action in the area of OWs be
impaired?
• Do such initiatives violate principle of EU preemption?

23. Why Sylvia Plath quote
• Not just because 50th anniversary …
• Great expectations about OWD
– But very limited instrument
• Wait for national implementations but national
initiatives like UK one are quite telling …
• Has the OW problem been solved in the EU?

24. Any questions?

25. Any Questions?
Thanks for
your attention!
Thank you
eleonorarosati@gmail.com
@eleonora_rosati
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