On 29th October, the Minister for Jobs Innovation and Enterprise signed the EU (Certain Permitted Uses of Orphan Works) Regulations 2014. These regulations implement the EU Orphan Works Directive of 2012. They create a new copyright exception for the use of “orphan works” by a range of establishments, such as public libraries, museums and archives which operate with a “public interest” remit. For the first time, these establishments will be able to digitise orphan material in their collections and to put the material online for viewing by members of the public, without the need to obtain the permission of the copyright owner.
Once a work has been determined to be “orphan” in one EU country, it will have the same status throughout the EU. A searchable European database has been created at OHIM (the Office for Harmonization in the Internal Market) for the registration of orphan works. The Irish regulations oblige beneficiary institutions to provide information regarding the identification and use of orphan material to the Office of the Controller of Patents Designs and Trade Marks. The Controller’s Office in turn will forward the information to the OHIM registry.
The following is an outline of the scheme in FAQ form:
What is an orphan work? This is a work for which a copyright owner is either unknown, or cannot be found.
What institutions will benefit? The beneficiary establishments are publicly accessible libraries, educational establishments and museums, as well as archives, film or audio heritage institutions and public-service broadcasting organisations, but only when acting in pursuit of their “public interest” remit.
What works can be used? The works which may be used are literary works, film and sound recordings which were first published in a Member State of the EU, and which are held in the permanent collection of the beneficiary organisation. Disappointingly the Directive excluded visual works, except when the work (such as a photograph or illustration) is “embedded or incorporated in, or constitutes an integral part of” a work included in the scheme.
What are the pre-conditions to use? Before the beneficiary institution can use a work, it must be established that the work is a genuine orphan. This is done by carrying out a “diligent search” for the copyright owner. The parameters of the search are set out in a schedule to the regulations. For a book, for example, the search should be made first of all in the European Registry of Orphan Works to see if it is already listed there. Then, in legal deposit library records; ISBN records and other databases listing books in print; publishers and authors associations; online databases such as the WATCH file, VIAF and the ARROW registry, and databases of collecting societies (the relevant Irish society for literary works being the Irish Copyright Licensing Agency).
When a work is established as orphan, the beneficiary institution must keep a record of the searches carried out, must furnish the search results to the Controller and must inform the Controller of the use to be made of the work.
What uses can be made of the works? While in general the regulations reiterate and elaborate where necessary the provisions of the Directive so as to make a readable stand-alone text, when it comes to stating the permitted uses of orphan works, it is done (as in the Directive) by referring to another Directive – the Information Society (or Copyright) Directive, forcing the reader to consult that Directive to try to understand the position. The permitted uses in the regulations are:
a) making the work available to the public, within the meaning of Article 3 of the Information Society Directive, and
b) reproducing the work within the meaning of Article 2 of the Information Society Directive, for the purpose of digitisation, making available, indexing, cataloguing, preservation or restoration.
There is a genuine pitfall for the institutions in the first of these. The institutions may, not unreasonably, assume that “making the work available to the public” means all forms of publication or communication to the public. This is not the case. Although “making available” under Irish law does imply almost all forms of communication, the term as used in the Information Society Directive has a much narrower meaning. The meaning is confined to a communication with the characteristic that “members of the public may access [the work] from a place and at a time individually chosen by them”. This is the “on-demand” right, regarded as confined to internet communications. So the permitted uses will not, for example, include traditional publishing, but would include e-publishing, when a text can be read online via on-demand internet delivery, provided of course the other conditions of use are met.
What is the “public interest” mission? As mentioned above, the uses are only sanctioned when the institution is acting in pursuit of its “public interest mission”. The limits of this phrase are unclear. It is simply stated (as in the Directive) that it means “in particular …the preservation of, the restoration of and the provision of cultural and educational access to relevant works”.
Can the institutions charge for providing access to the works? The regulations provide that an institution may “generate revenues …. for the sole purpose of covering the costs incurred by it in digitising the relevant work concerned and making it available to the public”.
Can the institutions grant licences to third parties for commercial use of the works? It is clear that the scheme is designed to exclude commercial licensing of orphan material by the beneficiary institutions. They may only act in pursuit of their public interest remit and may only cover their costs in making the material available. Moreover, the exception only permits them to put the material online and not to make or authorise further uses. Of course it is possible that a person who accesses the material online may be able to use the work (if it is provided in a re-usable format) on foot of a different copyright exception (such as fair dealing for research, for criticism or review, or for quotation), but that is another matter.
It is interesting to note that the UK has taken a much broader stance on the orphan works problem. In addition to implementing the Directive, a licensing scheme has been introduced which does permit the commercial re-use of orphan material. This scheme is, of necessity, confined to uses within the UK.
What happens if the copyright owner is identified after the work has been used? A copyright owner may appear at any point and put an end to the orphan status of the work. If that happens, the right holder is entitled to receive “fair compensation” from the institution which used the work. The amount of compensation can be settled by agreement, but in default of agreement can be fixed by the Controller. The Controller, in conducting this exercise, is given some pointed indications that the level of compensation need not equate to commercial value. While he must take into account the possible harm to the right holder, he must also have regard to the “cultural promotion objectives of the State” as well as the non-commercial nature of the use by the institution in seeking to realise its public interest mission.
