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Orphan works and out-of-commerce works

An orphan work (verwaistes Werk) is a work, such as a book, film, or music, for which the rightholder cannot be identified or, if identified, cannot be located. Perhaps the copyright owner:

  • is unaware of their ownership, or
  • the copyright owner has died or the company gone out of business, and
  • it is not possible to establish to whom ownership of the copyright has passed.

EU orphan works directive, new German law

The law of orphan works has been evolving both in Germany and internationally. To clarify the legal situation, an EU directive on orphan works, Directive 2012/28/EU, was formally approved by the EU Parliament in late 2012. It was then approved by the Council of Ministers. Member States, including Germany, had to bring the Directive into force as local law by 29 October 2014.

In 2013 the German legislature passed the law that implements the EU Directive 2013/28/EU:

The “Gesetz zur Nutzung verwaister und vergriffener Werke und einer weiteren Änderung des Urheberrechtsgesetzes (UrhGuaÄndG)” introduces sections §§ 61 – 61c to the UrhG[1] (regarding orphan works = “Verwaiste Werke”) and §§ 13d-e to the UrhWahrnG[2] (regarding out-of-commerce works = “Vergriffene Werke”)

 

Aim of the German orphan and out-of-commerce works law

The cultural heritage shall be preserved and protected by facilitated use, digitalization and dissemination of works[3].

Thus, the creation of European Digital Libraries, like Europeana, shall be encouraged.

These laws are a key action of the Digital Agenda for Europe[4] which is set out as one of the flagship initiatives of 'Europe 2020: A strategy for smart, sustainable and inclusive growth'[5].

 

Definition of orphan works:

Within the meaning of the §§ 61 ff. UrhG,

  1. literary works and other protected subject matter printed in books, journals, newspapers and magazines and
  2. films and audiovisual works

which are already published and probably under copyright,

are considered as “orphan works” (“Verwaiste Werke”)

if none of the right holders can be identified or located despite a “diligent search” (see below).

 

Definition of out-of-commerce works:

§§ 13d-e UrhWahrnG do not propose any legal definition of out-of-commerce works.

In general parlance a work is out-of-commerce

when it is still protected by copyright but the whole work, in all its versions and manifestations, is no longer available in customary channels because authors and publishers neither publish new editions nor sell copies through these channels. (However, there can be copies of the work in libraries and among the public.)

In the past, these works were referred to as “out-of-print works”. The term was modified because of the upcoming possibilities of electronic publishing.

According to data of the German National Library, there are 2 million books out-of-commerce at the moment.[6]

In contrast to orphan works, the right holder of out-of-commerce works is known.

Note: Orphan literary works are usually out-of-commerce. In this particular case, the institution can choose whether to use §§ 61ff. UrhG or avail the new § 13d UrhWahrnG (in order to avoid the complex and expensive “diligent search” of the right holder which is required by § 61a UrhG.[7])

 

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How to act with orphan works according to the new law

Note: The law only applies to public libraries, educational establishments, museums, archives, film and audio heritage institutions, § 61 II UrhG, and broadcasting organizations, § 61c UrhG. Like the EU directive, the German law doesn’t mention individual academics and researchers. Before using orphan works, the law requires a diligent search of the right holder.

A diligent search (§ 61 a UrhG):

  • includes the research using at least the sources listed in the annex of § 61a UrhG[8].
  • shall be carried out in the Member State of first publication.
  • Must be recorded: The information needs to be conveyed to the German Patent and Trade Mark Office (DPMA).
  • Is not necessary if the work is already registered by DPMA.

Consequences

If the author cannot be identified within this search, the work is regarded as “orphan” and can be used.

 

Permitted uses of orphan works:

  • To make the orphan works available for the public, § 61 I UrhG

(“Recht der öffentlichen Zugänglichmachung”, § 19a UrhG)

  • To make reproductions, for the purpose of conservation, restoration, making available for cultural and educational reasons and common good (“Vervielfältigungsrecht”, § 16 I UrhG)

Note: Certain language science may not fall into these permitted uses.

If there is more than one right holder, the work may be used, provided that the right holders that have been identified, have authorized the above-mentioned organizations, § 61 III UrhG.

If a right holder appears, the organization must not continue using the work: It is obliged to desist from further use and pay a fair compensation.

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How to act with out-of commerce works according to the new law

Note: The law only applies to literary works

  • that were published in books, journals, newspapers, magazines or other publications before January 1, 1966 (§ 13d I Nr.1 UrhWahrnG) and
  • which are currently part of the collection of a public library, educational institutions, museums, archives and institutes which store a large quantity of video and audio heritage (§ 13d I Nr. 2 UrhWahrnG).

It does not apply to film and audio works.

To safeguard the interests of authors and right holders, § 13d and § 13e enable commemorative institutions – under certain conditions – to use out-of-commerce works within the framework of a licensing agreement with a collecting society.

Conditions:

  1. The reproduction and publication has to be for non-commercial purposes, § 13d I Nr.3 UrhWahrnG.
  2. The right holder doesn’t lodge an objection to the DPMA or the collecting society within 6 weeks after publication of the registration
  3. Note: Nevertheless, the right holder still has the first right to digitalize and make his work available. He can veto the right administration and licensing by the collecting society anytime, § 13d II UrhWahrnG. It remains unresolved if this veto is only for the future or already for the past.
  4. On request of the collecting society, the works have to be registered by the German Patent Office German Patent and Trademark Office (DPMA) for information purposes, § 13d I Nr.4 UrhWahrnG. (Details of registration are set out in § 13e UrhWahrnG.)

Consequences

Under these conditions, the work gets the status “out-of-commerce” and can be reproduced (§16 UrhG) and made publicly available (§19a UrhG) within the framework of a collecting society’s licensing agreement.

Whereas some collecting societies have already changed their licensing agreements pertinently (f.e. VG Wort[9]), the new law (§§13d, e UrhWahrnG) offers the opportunity to make available even those out-of-commerce works whose right holders haven’t entrusted a collecting society with the task of administering their rights.

Collecting societies who already administer rights arising from §16 and § 19a UrhG are entitled to grant non-exclusive rights of use to everyone who is willing to pay for a license, whether they are entrusted with this task or not. (This is made possible by the assumption of § 13d UrhWahrnG.)

If the royalties are paid to the collecting society within such a licensing agreement, the paying institution is indemnified against claims of the true right holder, § 13d IV UrhWahrnG.

If there is more than one collecting society administering the rights arising from §16 and §19a UrhG, they are obliged to act collectively, § 13d III UrhWahrnG.

Legal framework

As recital 4 of the EU Directive 2012/28/EU[10] states, it is in the option of every member state to develop specific solutions for large-scale digitization issues, such as the out-of-commerce works.

However, there is an EU Memorandum of Understanding[11] that sets key principles on the digitization and making available of out-of-commerce works. In 2010, relevant stakeholders, such as libraries, publishers, collecting societies and authors, were brought together by the EU Commission to create this legal framework of voluntary licensing agreements which allows flexible negotiation. It’s without prejudice to individual right holders’ agreements.

Against this background, the German legislature introduced § 13d and § 13e UrhWahrnG on April 1, 2014.

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[2] From 01/04/2014, the official text of the law can be found under the following address: http://ra.de/gesetze/UrhWahrnG

 

Orphan works law UK

  • The Enterprise and Regulatory Reform Act 2013 - passed April 2013
  • May 2013, the UK Intellectual Property Office issues a 'myth-busting' document in FAQ form about the effect on photographers of a newly-introduced law: http://www.ipo.gov.uk/hargreaves-orphanmyth.pdf

 

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