EIFL (2013)

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Advertising Architectural Publishing of books, periodicals and other publishing Programming and broadcasting Computer programming Computer consultancy Creative, arts and entertainment Cultural education

Film and motion pictures Sound recording and music publishing Photographic activities PR and communication Software publishing (including video games) Specialised design Television programmes Translation and interpretation

1. Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare 2. Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)? 3. Harmony of interest assumption between authors and publishers (creators and producers/investors) 4. Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption) 5. Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)

A. Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right) B. Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction) C. Mass digitisation/orphan works (non-use; extended collective licensing) D. Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability) E. Fair remuneration (levies; copyright contracts) F. Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Source Details

EIFL (2013)
Title: The European Orphan Works Directive An EIFL Guide
Author(s): EIFL (2013)
Year: 2013
Citation: Electronic Information For Libraries - The European Orphan Works Directive An EIFL Guide (2013)
Link(s): Definitive , Open Access
Key Related Studies:
Discipline:
Linked by: Korn (2009)
About the Data
Data Description: The guide breaks down the Orphan Works Directive, therefore analysing its 12 provisions.
Data Type: Primary and Secondary data
Secondary Data Sources:
Data Collection Methods:
Data Analysis Methods:
Industry(ies):
Country(ies):
Cross Country Study?: Yes
Comparative Study?: Yes
Literature review?: No
Government or policy study?: Yes
Time Period(s) of Collection:
  • Not stated
Funder(s):
  • EIFL

Abstract

This guide sets out the background and key provisions of the Directive 2012/28/EU. It makes recommendations for implementation for EIFL partner countries that are members of the EU, and advises libraries in EIFL partner countries with EU bilateral agreements on crafting solutions that best meet their local circumstances and capacity.

Main Results of the Study

  • The problem of orphan works affects contemporary materials as well as older works, especially for online content that has no rights information or metadata identifying the rightholder.
  • Many published works have a short economic life because of the nature of the work, but are of enduring high value to historians, scholars and creators. For example: children’s storybooks that become oldfashioned; out-of-date political analysis of events; manuals for working people when the kind of work has changed, such as a handbook written in 1920 for domestic servants.
  • Even where orphan works provide valuable resources for scholarship, the transaction costs involved in obtaining permission may be too high, or the risks of litigation too great for the library to undertake the task. Governments, legal scholars, librarians and rightholders recognize that it is not in the public interest for so many works to be locked away from public use.

Policy Implications as Stated By Author

  • Member States should leave the list of sources as it stands in the Annex, without adding any further to the list.
  • Member States shall provide that a fair compensation is due to any re-appearing rightholder. The circumstances and level of compensation are to be decided by the law of the Member State in which the institution using the work is established. The non-commercial nature of the use, the public interest mission of the institution and the possible harm to rightholders will be taken into account in determining the amount (Recital 18). The Information Society Directive 2001/29/EC states that in situations where prejudice to the rightholder is likely to be minimal, no obligation for payment may arise (Recital 35). Compensation for the use of orphan works should follow the same principle, especially those that have not been in economic use for decades. In addition, a re-appearing rightholder must be able to demonstrate beyond doubt their right to the work, and the extent of their right (which may be shared with other rightholders who remain untraced).
  • Member States should follow the principle of the InfoSoc Directive and allow that a fair compensation may equal zero compensation in certain circumstances.
  • Member States should ensure in cases when a rightholder comes forward to claim their rights in a work that a proper system is in place for establishing the validity of their claim.
  • Unpublished works must be available for consultation in a Knowledge and Cultural Heritage Institution with the consent of the rightholder. An example would be the private diary of a life during wartime, written by a person whose son or daughter, having become the rightholder, gives it to a library after the death of the author, so that it can be consulted by researchers. This work will be an orphan work if the library cannot subsequently find the son or daughter, or cannot find the person who inherits their rights after they have died. The category “unpublished works” in the Directive therefore is very limited. Member States in addition can choose to exclude all unpublished works from the scope of the Directive if they are given to the library after 29 October 2014. Removal of another category of orphan work would have a negative impact on public access to historical and cultural materials, and it would add to the administrative burden of handling orphan works.
  • Member States should not limit the application of Article 1.3 to works deposited with libraries before 29 October 2014.
  • Recognizing the growing problem of orphan works in the dissemination of Europe’s cultural heritage, the European Union decided to legislate to permit the use of orphan works in special circumstances. Ideally, the Directive would enable libraries to undertake large-scale digitization of interesting works whose rightholders cannot be traced, and make the works available on the public internet for educational and cultural purposes.



Coverage of Study

Coverage of Fundamental Issues
Issue Included within Study
Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare
Green-tick.png
Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)?
Harmony of interest assumption between authors and publishers (creators and producers/investors)
Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption)
Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)
Coverage of Evidence Based Policies
Issue Included within Study
Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right)
Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction)
Mass digitisation/orphan works (non-use; extended collective licensing)
Green-tick.png
Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability)
Fair remuneration (levies; copyright contracts)
Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Datasets

Sample size: 12
Level of aggregation: Provision
Period of material under study: Not stated