Rechtsanwältin, Senior Associate
Out-Law News | 12 Jan 2011 | 2:58 pm | 2 min. read
A committee of three experts has said that as a measure to prevent the creation of 'orphan works' whose owner is not known the creators of material should have to register to receive their full copyright rights.
The report (45-page / 1.5MB PDF) also said that libraries, galleries and museums should be able to digitise copyrighted works that are out of commercial distribution if private owners do not do so.
A 'high level reflection group', the Comité des Sages, has submitted proposals to inform the European Commission's policies on digital culture and its library of digitised cultural artefacts, Europeana. The Comité is made up of advertising executive Maurice Lévy; German national library chair Elisabeth Niggemann; and author Jacques De Decker
"Preventing orphan works in the future is a main concern," said the report. "In order to avoid orphan works in the future in an environment where creative production is exploding online (e.g. user generated content) without a clear indication of how to contact the creator, some form of registration should be considered as a precondition for a full exercise of rights."
"The Comité realises that this would require a change in the Berne Convention and related instruments," it said, referring to a legal instrument binding many countries to laws respecting copyright. "Its members consider that a discussion on 'refreshing' the Convention should be taken up in the World Intellectual Property Organisation, and promoted by the Europea Commission."
The Comité stressed the importance of ensuring the number of orphan works is reduced.
"A European legal instrument needs to be adopted as soon as possible to tackle the issue of orphan works," said the report.
The report laid out eight conditions which must be met before orphan works are digitised and said that something that is deemed an orphan work in one EU country would be considered an orphan work and made available in all 27 member states.
The Comité said that the Commission should also deal with works that had passed out of commercial distribution. It said that a law should be passed giving cultural institutions a "window of opportunity" to digitise works and pay copyright holders a fee.
"In case rights holders do not exploit their material directly, collectively, or in collaboration with a private partner, cultural institutions should have a window of opportunity to digitise the material and make it available," said the report. "This should be backed by legislation."
Though rights holders and their representatives may not welcome laws that allow public bodies to digitise their work without their permission, the Comité said that it believed its proposals balanced the rights of all the people involved.
"In order to comply with the norms that exist in intellectual property laws, digitisation requires the clearance of each and every copyright and related right," said the report. "Therefore mechanisms have to be developed that recognise the rights and interests of the rights holders, but at the same time facilitate the digitisation that in turn will lead to greater innovation and creativity."
"Given the cost of rights clearance, it is in the public as well as private interest of European society to streamline rights clearance in a manner that is fair and balanced," it said.
Rechtsanwältin, Senior Associate