EN Official Journal of the European Union C 376/66

Opinion of the European Economic and Social Committee on the ‘Proposal for a Directive of the European Parliament and of the Council on certain permitted uses of orphan works’

COM(2011) 289 final — 2011/0136 (COD)

2011/C 376/12

Rapporteur: Mr McDONOGH

On 15 June 2011 and 7 June 2011 respectively, the Council and the European Parliament decided to consult the European Economic and Social Committee, under Article 114 of the Treaty on the Functioning of the European Union, on the

Proposal for a Directive of the European Parliament and of the Council on certain permitted uses of orphan works

COM(2011) 289 final — 2011/0136 (COD).

The Section for the Single Market, Production and Consumption, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 30 August 2011.

At its 474th plenary session, held on 21 and 22 September 2011 (meeting of 21 September), the European Economic and Social Committee adopted the following opinion by 131 votes with three abstentions.

1. Observations and Recommendations

1.1 The Committee welcomes the Proposal from the Commission concerning the Directive on the use of orphan works. The successful completion of the initiative will boost the development of digital libraries like Europeana (1) and other public institutions performing public interest missions referred to in Article 1(1) of the proposed Directive, through which citizens can access the diversity and richness of Europe's cultural heritage.

1.2 The Committee is preparing a separate opinion on the recent Communication from the Commission that proposes a strategy for a Single Market for Intellectual Property (IP) (2). IPR is a key enabler of the technological and commercial innovation on which Europe will depend for economic recovery and future growth (3). The nature of IPR governance is also crucial to the flourishing of European culture and the quality of life enjoyed by European citizens.

1.3 The Committee does not believe that the Europe 2020 Strategy for smart, sustainable and inclusive growth can be achieved without the creation of a true Single Market for IP. For many years the Committee has been calling for the harmonisation of European and national rules to promote innovation, creativity and the welfare of citizens, while also supporting initiatives that bring works, goods and services within reach of the largest possible number of people (4).

1.4 The Committee agrees in general with the proposed Directive for a legal framework to ensure the lawful, cross-border online access to orphan works (5). In its Opinion on the Digital Agenda for Europe (6), the EESC firmly endorsed actions like the implementation of this framework, which would tackle the problems of cultural and economic fragmentation in the Single Market.

1.5 The EESC strongly supports the digitisation and wide dissemination of Europe's cultural heritage (7). It believes that making this material available online is a key component of the development on the knowledge economy in Europe, and that it is essential to providing a rich and diverse cultural life for citizens. Therefore, the Committee is pleased that the Commission is proposing a Directive that will deal with the particular problem of orphan works.

1.6 The Committee recognises that a Directive is necessary because very few Member States have implemented orphan works legislation, and any national legislation that exists limits access to citizens resident in their national territories.

1.7 The Committee agrees in principle with the four-pillar approach proposed in the Directive:

— Establishing the rules for identifying orphan works by means of a diligent search for the copywriter holder;

— Recognising an orphan work if the search does not establish a copyright holder;

— Establishing the uses that can be made of the orphan works, including their dissemination to all Member States;

— The mutual recognition of orphan work status across all Member States.

1.8 To facilitate the efficient search for copyright owners and the wide dissemination of orphan works, the availability of online databases and registries of rights, similar to the tool that exists in the book-publishing sector (8), are essential for every sector. The Committee calls upon the Commission to facilitate the work of representative organisations in the development of these tools.

1.9 The EESC is of the opinion that Member States should maintain a register of databases in their country that are officially approved to record the results of diligent searches carried out in their territories, as necessitated by the terms of Article 3(4) of the Directive. Such registers would assist institutions in other EU countries to know that sources are officially trusted.

1.10 The Committee draws the attention of the Commission to the importance of traditional music, oral history, photographs and cinematographic works to the cultural heritage of the EU and requests that such recordings and images in the archives of any institution listed in Article 1(1) will receive equal treatment in the identification and publication of orphan works. The Committee notes that Article 11 of the Directive provides for the possible inclusion in the scope of the Directive of protected subject matter which are currently not included, notably phonograms and stand alone photographs, and it urges the Commission to proceed with their inclusion as soon as possible.

1.11 The Committee also welcomes the Commission's ambition to conclude a Memorandum of Understanding amongst libraries, publishers, authors and collecting societies to facilitate licensing solutions to digitise and make available out-of-commerce books (9).

2. Background

2.1 The Commission has proposed an IPR Strategy (10) as part of the overall agenda to foster sustainable growth and jobs in the Single Market and improve Europe's competitiveness on a global level. The Strategy is complementary to and an important element of the Europe 2020 Strategy, the Single Market Act (11) and the Digital Agenda for Europe.

2.2 In a recent communication, on which the Committee is drawing up a separate opinion, the Commission envisages the creation of a single market for intellectual property (12). Among the first deliverables of this IPR strategy is the proposed Directive for an easier permission to use orphan works that will allow many cultural works to be accessible online, in every Member State. Thus facilitating the development of European digital libraries that preserve and disseminate Europe's rich cultural and intellectual heritage.

2.3 The digitisation and dissemination of orphan works pose a particular cultural and economic challenge. The absence of a known right holder means that users are unable to obtain the required authorisation, e.g. a book cannot be digitised. Orphan works represent a substantial part of the collections of Europe's cultural institutions; for example, the British Library estimates that 40 per cent of its copyrighted collections - 150 million in total - are orphan works.

2.4 The Commission is now proposing a Directive to provide common rules across all Member States on how to deal with such works, to facilitate the large-scale digitisation projects required by the Digital Agenda for Europe.

2.5 The Commission carried-out an impact assessment and considered six different options for tackling the orphan works initiative (13). It concluded that the best approach should be based on mutual recognition by Member States of the orphan status of works. This allows libraries and other beneficiaries referred to in Article 1(1) of the proposed Directive to enjoy legal certainty as to the ‘orphan status’ of a particular work. Furthermore, mutual recognition ensures that the orphan works contained in a digital library would be available to citizens across Europe.

2.6 The Directive rests on four pillars:

i. First, in order to establish the ‘orphan work’ status, libraries, educational establishments, museums or archives, film heritage institutions and public service broadcasting organisations are required to carry out a prior diligent search, in line with the requirements specified in the proposed directive, in the Member State where the work was first published.

ii. Once the diligent search establishes the ‘orphan status’ of a work, the work in question will be deemed an orphan work throughout the EU, obviating the need for multiple diligent searches.

iii. On this basis, it will be possible to make orphan works available online for cultural and educational purposes without prior authorisation unless the owner of the work puts an end to the orphan status. When that happens right holders who come forward to claim their works should be remunerated and such remuneration should take account of the type of work and the use concerned.

iv. The mutual recognition of orphan work status across all Member States.

3. Comments

3.1 The Committee believes that it is important for all IPR policy initiatives to balance the rights of creators and owners with the interests of users and final consumers so as to bring works within the reach of the largest number of people and in every Member State.

3.2 To facilitate a search for IPR, the Commission could publish and regularly update the list of institutions referred to in Article 1(1) of the Directive that are responsible for managing orphan works.

3.3 Furthermore, these institutions need to know that sources for records of diligent searches in another EU country are officially trusted. Therefore, Member States should maintain a register of databases in their country that are officially approved to record the results of diligent searches carried out in their territories, as necessitated by the terms of Article 3(4) of the Directive.

3.4 The Committee notes that Article 11 of the proposed Directive provides for the possible inclusion in the scope of the Directive of protected subject matter which are currently not included, notably phonograms and stand-alone photographs. Notwithstanding this review provision, the case needs to be made now for the early publication of these cultural artefacts.

3.4.1 Traditional music and oral history is very important to the cultural heritage of Europe and there is a rich archive of recorded material throughout the EU, not only in public service broadcast organisations but also in the other institutions listed in Article 1(1). All of this audio and audiovisual material should be subject to the same rules of search, classification and use as the other works listed in Article 1(2) of the Directive.

3.4.2 Similarly, photographic and cinematographic material provide a particularly rich information source for knowledge and understanding of European civilisation and where such works might be classified as orphan works, then every effort should be made to free this material from the hidden archives of public institutions.

Brussels, 21 September 2011. The President of the European Economic and Social Committee Staffan NILSSON

(1) Europeana enables people to explore the digital resources of Europe's museums, libraries, archives and audio-visual collections. The project is funded by the European Commission and was launched in 2008 with the goal of making Europe's cultural and scientific heritage accessible to the public. See: www.europeana.eu.

(2) COM(2011) 287 final A Single Market for Intellectual Property Rights.

(3) See: Europe 2020 Strategy (COM(2010) 2020 final), the Annual Growth Survey 2011 (COM(2011) 11 final), the Digital Agenda for Europe (COM(2010) 245 final), the Single Market Act (COM(2011) 206 final) and the Innovation Union (COM(2010) 546 final).

(4) OJ C 116, 28.4.1999, p. 35; OJ C 155, 29.5.2001, p. 80; OJ C 221, 7.8.2001, p. 20; OJ C 32, 2.2.2004, p. 15; OJ C 108, 30.4.2004, p. 23; OJ C 324, 30.12.2006, p. 7; OJ C 256, 27.10.2007, p. 3; OJ C 182, 4.8.2009, p. 36; OJ C 218, 11.9.2009, p. 8; OJ C 228, 22.9.2009, p. 52; OJ C 306, 16.12.2009, p. 7; OJ C 18, 19.1.2011, p. 105; OJ C 54, 19.2.2011, p. 58.

(5) Orphan works are works like books, newspaper or magazine articles that are still protected by copyright but the copyright holders cannot be located to obtain copyright permissions. They include cinematographic or audiovisual works. Orphan works are found in the collections held by European libraries.

(6) OJ C 54, 19.2.2011, p. 58.

(7) OJ C 324, 30.12.2006, p. 7; OJ C 182, 4.8.2009, p. 36; OJ C 228, 22.9.2009, p. 52; OJ C 18, 19.1.2011, p. 105; OJ C 54, 19.2.2011, p. 58.

(8) ARROW: Accessible Registries of Rights Information and Orphan Works towards Europeana, is a project of a consortium of European national libraries, publishers and collective management organisations, also representing writers through their main European associations and national organisations, see: www.arrow-net.eu.

(9) See IP/11/630, Brussels 24 May 2011.

(10) COM(2011) 287 final A Single Market for Intellectual Property Rights.

(11) COM(2011) 206 final Single Market Act -Twelve levers to boost growth and strengthen confidence ‘Working together to create new growth’.

(12) COM(2011) 287 final.

(13) SEC(2011) 615 final Impact assessment on the cross-border online access to orphan works.