Statutes and Jurisprudence

Orphan Works

In October 2012 the European Union adopted Directive 2012/28/EU on Orphan Works. It applies to orphan works that were created in the EU as printed works (books, journals, magazines and newspapers), cinematographic and audio-visual works, phonograms, and works embedded or incorporated in other works or phonograms (e.g. pictures in a book). Under certain conditions, the directive can also apply to unpublished works (such as letters or manuscripts).

Sec. 1. Publicly accessible libraries, educational establishments and museums, as well as archives, film or audio heritage institutions and public-service broadcasting organisations, established in the Member States, are engaged in large-scale digitisation of their collections or archives in order to create European Digital Libraries. They contribute to the preservation and dissemination of European cultural heritage, which is also important for the creation of European Digital Libraries, such as Europeana. Technologies for mass digitisation of print materials and for search and indexing enhance the research value of the libraries' collections. Creating large online libraries facilitates electronic search and discovery tools which open up new sources of discovery for researchers and academics who would otherwise have to content themselves with more traditional and analogue search methods.

Sec. 20. In order to promote learning and the dissemination of culture, Member States should provide for an exception or limitation in addition to those provided for in Article 5 of Directive 2001/29/EC. That exception or limitation should permit certain organisations, as referred to in point (c) of Article 5(2) of Directive 2001/29/EC and film or audio heritage institutions which operate on a non-profit making basis, as well as public-service broadcasting organisations, to reproduce and make available to the public, within the meaning of that Directive, orphan works, provided that such use fulfils their public interest missions, in particular the preservation of, the restoration of, and the provision of cultural and educational access to, their collections, including their digital collections. Film or audio heritage institutions should, for the purposes of this Directive, cover organisations designated by Member States to collect, catalogue, preserve and restore films and other audiovisual works or phonograms forming part of their cultural heritage. Public-service broadcasters should, for the purposes of this Directive, cover broadcasters with a public-service remit as conferred, defined and organised by each Member State. The exception or limitation established by this Directive to permit the use of orphan works is without prejudice to the exceptions and limitations provided for in Article 5 of Directive 2001/29/EC. It can be applied only in certain special cases which do not conflict with the normal exploitation of the work or other protected subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder.

In Gyles v Wilcox, the Court of Chancery established the doctrine of "fair abridgement", which permitted unauthorized abridgement of copyrighted works under certain circumstances.

Google has "taken a very conservative stance and only books pre-1923 will be considered public domain." Google intends to operate this database in compliance with U.S. copyright law by displaying full-text for those works in the public domain, and partial-text for anything published post-1923.

References:

Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works Text with EEA relevance. OJ L 299, 27.10.2012, p. 5–12 (BG, ES, CS, DA, DE, ET, EL, EN, FR, IT, LV, LT, HU, MT, NL, PL, PT, RO, SK, SL, FI, SV)

Special edition in Croatian: Chapter 17 Volume 002 P. 253 - 260

https://eur-lex.europa.eu/eli/dir/2012/28/oj

Google Print Library Project-Frequently Asked Questions, http://print.google.com/ googleprint/library.html (last visited May 15, 2005).

Gyles v Wilcox, 3 Atk 143;26 ER 489 (Court of Chancery (England) 1740).