Directive on Orphan Works

The Commission Communication on Copyright in the Knowledge Economy of October 2009 suggested a series of preparatory actions for follow up initiatives in the next Commission’s strategy on IP. The Communication proposed tackling the issue of orphan works by providing for an EU wide solution to create legal certainty. It announced that the Commission would examine the problem in an Impact Assessment which would explore several options.
The issue was also dealt with by the High Level Group on Digital Libraries; its copyright Subgroup issued a set of recommendations on right clearing centres and databases for orphan works.
In October 2009, the Commission held a hearing on orphan works; in November 2009, the European Parliament organised a workshop on orphan works and access for visually impaired people.
In May 2010, Commissioner Barnier announced at the European Parliament that the Commission would publish a Directive on Orphan Works, to increase legal certainty and support digitisation efforts of our cultural heritage. Mr Barnier called for a European definition of orphan works.
The Commission issued a draft proposal together with an Impact Assessment on 24 May 2011. A rapporteur was designated at the EP, MEP Geringer de Oedenberg (S&D, PL) who issued her report on 27 September 2011. Opinions were voted in the Culture and Education committee and the Internal Market and Consumer Protection committee of the EP in November and December 2011. On 1 March 2012, the EP report in the Legal Committee has been voted. Meanwhile the Council met under the Polish presidency and the Danish ones to bring some changes to the Directive.
Since the end of March the Council, the EP and the Commission have been meeting for trilogues and technical meetings in order to reach agreement on one text to be voted in one reading in September 2012.

  • FEP has been meeting Commission officials and MEPs to provide the views of publishers on the draft proposal on orphan works. FEP kept stressing that to be able to determine the status of a work, it is essential that a due diligent search be conducted prior to the making available on the internet on each work as well as the possibility for rightholders to easily access the result of the diligent search. This is why FEP has initiated the ARROW project, which will facilitate the due diligent search for libraries. FEP also called for a licence, which was not taken on board, in order to bring the legal certainty asked by public institutions. As a result and considering that the Directive provides now for an exception, FEP has opposed commercial use of orphan works under such circumstances.
  • FEP had several meetings and contacts in particular with the Copyright Unit of DG Internal Market, with the cabinet of Commissioner Barnier and with the services and cabinets of Vice-President Kroes and Commissioner Vassiliou to ensure that the future Directive on orphan works takes publisher’s views and concerns into consideration.
  • FEP have been contacting and meeting the different rapporteurs and shadow rapporteurs to convey the views of publishers as the report and opinions progressed and sent voting recommendations ahead of votes in order to ensure a balanced Directive enabling the digitisation and making available of orphan works across Europe whilst respecting copyright principles and publishers’ interests.
  • FEP presented the publishers’ view on orphan works also to the Polish and Danish Presidencies of the EU as well as other permanent representations in Brussels.
  • FEP has been drafting and coordinating common positions on the draft Directive with trade organisations of the print sector as well as larger coalition of creative industries.