Directive 2012/28 / EU (Orphan Works Directive)

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Directive 2012/28 / EU

Title: Directive 2012/28 / EU of the European Parliament and of the Council of 25 October 2012 on certain permitted forms of use of orphan works
Designation:
(not official) 		Orphan Works Policy
Scope: EEA
Legal matter: copyright
Basis: TFEU , in particular Articles 53 (1) , 62 and 114
Procedure overview: European Commission
European Parliament
IPEX Wiki
Come into effect: October 28, 2012
To be
implemented in national law by: 		October 29, 2014
Implemented by: Germany
Law on the use of orphaned and out-of-print works and a further amendment to the Copyright Act ( Federal Law Gazette 2013 I p. 3728 )
Law on the alignment of copyright law with the current requirements of the knowledge society ( Federal Law Gazette 2017 I p. 3346 )
Reference: OJ L 299 of October 27, 2012, pp. 5–12
Full text Consolidated version (not official)
basic version
The regulation must have been implemented in national law.
Please note the information on the current version of legal acts of the European Union !

The Directive 2012/28 / EU (Orphan Works Directive) regulates the permitted uses of orphan works "by publicly accessible libraries, educational establishments, museums and archives in the field of film or audio heritage institutions active and public-service broadcasters, the are based in the Member States in order to achieve the objectives related to their tasks in the common good ”.

purpose

Directive 2012/28 / EU aims to create a uniform legal framework in the European Economic Area (EEA) "to facilitate the digitization and dissemination of works protected by copyright or related rights and other subject matter whose rights holder is unknown or, even if this is known, not can be found - so-called 'orphan works' "are created. This is "a key measure of the Digital Agenda for Europe , as set out in the Commission communication 'A Digital Agenda for Europe" ". This directive represents a further legislative harmonization step within the framework of the EU and the EEA and with a view to a uniform European copyright law .

All EU copyright directives basically serve to protect authors and to dismantle trade barriers and distortions of competition in relation to copyright law and the free exchange of knowledge and innovation in the European internal market . The main objective of Directive 2012/28 / EU, however, is the preservation and dissemination of European cultural heritage within the framework of Europe 2020 . See also: Europeana .

Subject - orphan works

The subject of this directive is orphan works within the meaning of Article 1, Paragraph 2 of Directive 2012/28 / EU:

  • Works that have been published in the form of books, journals, newspapers, magazines or in any other written form and that are contained in collections of publicly accessible libraries, educational institutions or museums as well as in the collections of archives or in institutions active in the field of film or audio heritage
  • Film or audiovisual works and phonograms contained in the collections of publicly accessible libraries, educational institutions or museums as well as in the collections of archives or institutions in the field of film or audio heritage
  • Cinematographic or audiovisual works and phonograms produced by public service broadcasters up to and including 31 December 2002 and contained in their archives, protected by copyright or related rights and first published in a Member State or, if they are were not published, were sent

According to Article 1 Paragraphs 3 and 4 of Directive 2012/28 / EU, this also applies to:

  • Works and phonograms which have neither been published nor broadcast, but which have been made available to the public by the institutions in accordance with Article 1 (1) of Directive 2012/28 / EU with the consent of the rights holders, provided that it can be reasonably assumed that the rights holders are in accordance with the use Would not oppose Article 6 of the Directive, and
  • also for works and other subject matter that is embedded, incorporated or an integral part of works or sound carriers as described above.

Whether orphaned software and computer games (" abandonware ") fall under the definition of audiovisual works in the directive is a matter of debate among scholars.

Legal basis

The adoption of this directive was based on

  • Article 53 (1) TFEU (coordination of laws, regulations and administrative provisions of the Union Member States )
  • Article 62 TFEU (referral) and
  • Article 114 TFEU (procedural provision)

supported.

construction

  • Article 1 (subject matter and scope)
  • Article 2 (Orphan Works)
  • Article 3 (careful search)
  • Article 4 (mutual recognition of orphan work status)
  • Article 5 (end of orphan work status)
  • Article 6 (Permitted Forms of Use of Orphan Works)
  • Article 7 (Further application of other legislation)
  • Article 8 (effective date for applicability)
  • Article 9 (implementation)
  • Article 10 (review clause)
  • Article 11 (entry into force)
  • Article 12 (addressees)
  • Annex ( sources within the meaning of Article 3 (2) of the Directive )

Selected provisions

Careful search

A central element in order to be able to classify a work as an orphan work is the obligation of the publicly accessible libraries, educational institutions and museums as well as archives, institutions active in the field of film or audio heritage and public broadcasting corporations that are based in the EEA member states have to conduct a careful search for the authors of the work before using the work or sound carrier (Art. 3 of Directive 2012/28 / EU).

Mutual recognition of orphan work status

According to Article 4 of Directive 2012/28 / EU, the status of a work or phonogram as an orphan work must be mutually recognized in all member states of the European Union and EEA member states ( Liechtenstein , Iceland and Norway ). A work that has been declared as orphan can be used and accessed in all EU member states in accordance with the requirements of Directive 2012/28 / EU.

End of orphan work status

If a rights holder is found and he objects to the use of the work as an orphan work, the use must be ended immediately and fair compensation must be paid for the previous use of such works and other subject matter (see Art. 5 and Art. 6 Para. 5 of Directive 2012/28 / EU).

See also

literature

Web links

Individual evidence

  1. ↑ "Orphan works" are those whose rights holders are unknown or, even if these are known, cannot be located - see Article 2 and Recital 3 ff of Directive 2012/28 / EU.
  2. ↑ Art. 1 Paragraph 1 of Directive 2012/28 / EU
  3. ↑ See Recital 3 of Directive 2012/28 / EU.
  4. ↑ Recital 2 of Directive 2012/28 / EU.
  5. ↑ See Recital 1 ff in Directive 2012/28 / EU.
  6. ↑ See also appendix to Directive 2012/28 / EU.
  7. ^ Henrike Maier: Games as Cultural Heritage Copyright Challenges for Preserving (Orphan) Video Games in the EU. (PDF) In: JIPITEC. Humboldt Universität zu Berlin, 2015, p. 120 , accessed on January 18, 2016 (English).