Directive 2012/28/EU is a directive of the European Parliament and European Council enacted on 25 October 2012 that pertains to certain uses of orphan works. The directive sets out common rules on the digitisation and online display of orphan works. After a diligent search has been completed, a work can be registered at the orphan works register of the European Union Intellectual Property Office. Registering a work at that database allows for certain permitted uses of that work by cultural heritage institutions. Only such institutions are allowed to submit an orphaned work to the register. In case a copyright holder comes forward later, they are entitled to stop the institution's usage of the work and to ask for a retroactive license fee. The directive's diligent search requirements have been criticized as burdensome and unworkable.
Basis
Orphan works are works like books, newspaper articles, or films, which may be protected under copyright but for which the copyright holder cannot be found. A substantial portion of the collections of Europe's cultural institutions are orphan works. Orphan works are not available for legal use by filmmakers, archivists, writers, musicians, and broadcasters. Public libraries, educational institutions and museums, that digitise old manuscripts, books, sound recordings and film, may choose to not digitise orphan works, or make orphan works available to the public, for fear that a re-appearing rights-holder may sue them for damages. The EU had set out large-scale digitisation programs and in order for these programs to be successful, common rules on how to deal with orphan works needed to be established. By early 2016, more than three years after the directive's enactment, the orphan works register only contained 1,435 works, which critics cited as evidence "that the EU approach to orphan works is unreasonably complex and won’t adequately address the problem it’s trying to fix," namely enabling mass digitization efforts. After six years, in 2018, the number had reached 6,000.
Works Covered by the Directive
This directive applies to the following orphan works that were created in the EU:
works embedded or incorporated in other works or phonograms
Under certain conditions, the directive can also apply to unpublished works. Whether orphaned software and video games fall under the audiovisual works definition is debated.
Function
The directive provides regulations on how to identify orphan works. An organisation that wishes to digitise a work in question has to conduct a scrupulous search to find its copyright holder. In this search, it should rely on sources such as databases and registries like ARROW for text and image-based works. A registry for orphan film is currently developed by ACE – Association of European Film Archives and Cinematheques in the FORWARD project. A diligent search guideline and tool has also been developed by the EnDOW project.. By 2017, its tool for diligent searches was available for 20 European UnionMember states. Around that time, a study by EnDOW researchers warned that "the absence of hierarchical validity of the appropriate sources for Diligent Search leave the clearing of rights uncertain" and that "only the free accessibility of hierarchized sources will make Diligent Search workable". At the time of the launch of the directive in 2012, it had been hoped that other sectors would develop similar information databases. The directive also establishes that if a search does not find the identity or location of the copyright holder, the work shall be officially recognised as an orphan work. This status shall be valid for the whole of the European Union, which means the organisation will be able to make it available online in all Member States. The directive also foresaw the establishment of a single European registry of all recognised orphan works to be set up and run by EUIPO, the European Union Intellectual Property Office based in Alicante. This database went live in October 2014 as a publicly accessible online platform. Works identified as orphan works can be used by beneficiary organisations to achieve aims related to their public interest mission. They will be allowed to conclude public-private partnerships with commercial operators and to generate revenues from the use of orphan works to cover digitisation costs. Under this directive, a reappearing copyright-holder can assert his/her copyright and thereby end the orphan work status, and is entitled to license fees from the cultural institution for its usage of the work while it had orphan status. The Directive was influenced by a survey of the state of intellectual property law in the United Kingdom called the Hargreaves Review of Intellectual Property and Growth. James Boyle, one of the experts consulted for the Review, acknowledged the directive as "a start", but offered this criticism of the resulting policy:
