Like the other 27 members of the European Union, Ireland must implement into its Copyright regulation the 2012 Directive on certain uses of orphan works.
The Department of Jobs, Enterprise and Innovation has published on March, 20th 2014, a public consultation on the transposition.
Replies and comments must arrive at the Department for April, 23th 2014. The time is very short.
REMINDER OF THE DIRECTIVE PRINCIPLES
The principle of the Directive is now well.
The Directive was written to allow certain national cultural institutions (such as publicly accessible libraries, educational establishments, museums, public broadcasters, etc..) to reproduce and to put online a part of their heritage (written texts, their cinematographic or audiovisual works, phonograms and images contained in these works – but independent images are explicitly excluded from the Directive).
Before these institutions perform these acts, they should have tried to find any owner of rights related to the works.
If the institutions fail to find the rightholders, they can reproduce and upload these works. Free of charge. If the rightholder is located and found, the usual rules of negotiation apply.
In cases of a rightholder returns and finds that one of his works has been used without his permission, he will be entitled to a fair compensation for the uses made by the institutions of his works.
CLARIFICATION OF THE IRISH CONSULTATION
The text of the Irish consultation is very short (8 pages). Nevertheless, it provides some useful information.
Cultural institutions can use the works concerned for their website but they can not be used them as part of a publication as a book or communicate them to the public in the context of a TV program.
When a cultural institution of a Member State could not find the owner of the copyright of a work, the work will be described as an orphan and so can be used by the institution. The qualification “orphan work” has an pan-European effect. Therefore, the publication of an orphan work (here by an Irish cultural institution) will not be restricted to the Irish border.
The Irish text also recalls that uses carried out by cultural institutions must specify the name (s) (s) assigns found and located.
Indeed, a work can sometimes have several rightholders and the institution could have found some only. In this case, that cultural institutions will be able to publish on its website the “semi-orphan” work online only after having obtained the authorisation of the found rightholders.
Europe has asked the Office for Harmonisation in the Internal Market (OHIM) in Alicante, Spain to set up a European database of all European orphan works. When cultural institution has determined that a work is orphaned (because after its research, it has not found the rightholder), it will have to encode it in the linked database computer system of the OHIM.
Therefore, all national cultural institutions will be informed that the work is an orphan and that they can use it too.
If the rightholder returns, he will be entitled to a fair compensation for the use made of his works. The institution will also negotiate with him for future use.
The Irish text is vague on the amount of the fair compensation.
Indeed, it only returns to Article 6.5 of 2012 Directive which states that it is left to the discretion of Member States regarding the determination of the fair compensation “Member States shall be free to determine the circumstances under which the payment of such compensation may be organised. The level of the compensation shall be determined, within the limits imposed by Union law, by the law of the Member State in which the organisation which uses the orphan work in question is established“. It also returns to recital 18 of the Directive which states that it:”Member States should be free to determine the circumstances under which the payment of such compensation may be organised, including the point in time at which the payment is due. For the purposes of determining the possible level of fair compensation, due account should be taken, inter alia, of Member States’ cultural promotion objectives, of the non-commercial nature of the use made by the organisations in question in order to achieve aims related to their public-interest missions, such as promoting learning and disseminating culture, and of the possible harm to rightholders. “.
The consultation suggests that, in case of a conflict between a rightholder and a cultural institution that has used his work without his authorisation, to submit the dispute to the Controller of Patents, Designs and Trademarks.
ANSWERS EXPECTED by the end of April 2014
The Department of Jobs, Enterprise and Innovation expect different opinions and remarks for April, 23th 2014.
Interested parties should also decide on the adoption or not by Ireland of the optional clause of the Directive. Member States are free indeed to reject or not the works and phonograms filed with cultural institutions after 29 October 2014 (date of transposition of the Directive) the benefits of the Directive.
The Department believes that this should not be the case.
The consultation also particularly asked interested parties to comment on the sources that the cultural institutions are required to consult in order to find potential rightholders of the works they want to put online. A list of sources is already mentioned in the Annex to the Directive. Do they want to add more?