News

« Fairly legal » – FIAF Congress Symposium on Copyright, Sydney, 13-14 April 2015

This year’s FIAF symposium « Fairly legal – Intellectual property, content regulation and film archiving: where are we heading? » invites film curators, archivists, researchers and legal experts from all over the globe how copyright in a digital environment affects the film archives’ mission to collect, preserve and make film heritage available. It is organised as part of the 71st IAF Congress, which will be held in Sydney and Canberra from 12-18 April 2015. Topics, amongst other things, are how US archives deal with orphan works under a fair use doctrine (Gregory Lukow and Hope O’Keeffe, Library of Congress), a European framework agreement, which aims to speed up the digitisation and restoration of films (Nicola Mazzanti, president of the Association of European Film Archives and Cinematheques – ACE), and the end of deposits in the digital age (Thomas C. Christensen, The Danish Film Institute / ACE).

Download the FIAF Congress programme

Download the FIAF Congress booklet

52 Orphan Films registered in OHIM

By 1 April, 52 audiovisual and cinematographic works were registered in the EU Orphan Works Database managed by the Office of Harmonisation in the Internal Market (OHIM). The Danish Film Institute alone recorded 26 titles so far and is the most active user from the film heritage sector.

Overall, the registration process is still slow: 49 literary works, and 1-2 titles in each of the categories fine art, illustration, phonograms, photograpy and maps have been declared orphan by the beneficiaries.

One reason for this caution is probably the complex diligent search which neeeds to be carried out before a work can be declared orphan. If the member states have adopted the list of sources that is annexed to the Orphan Works Directive (OWS), the search can be time-cosuming. This list is more or less mandatory, regardless of whether or not the sources are useful. And Denmark is one of the few countries where the beneficiaries decide for themselves which are the relevant sources to consult.

It will be one of the main services of the FORWARD system to semi-automatize and simplify the diligent search processes for the archives, which will allow to identify orphan films more quickly and considerably increase the number of titles in OHIM.

Background: The OHIM database has been launched on 27 October 2014. Beneficiaries of the Directive 2012/28/EU (publicly accessible libraries, educational establishments, museums, archives, as well as film and AV heritage institutions and public-service broadcasting organisations) must record works in the database they have identified as orphan during the diligent search. The database allows users to search for orphan works, obtain contact information of the organisations using them, and rights holders can put an end to their orphan work status.

You can access the OHIM database and register orphan works here.

Out of Love For Cinema: Filmoteka Narodowa presents highlights of Polish pre-war cinema

FORWARD partner Filmoteka Narodowa presents its treasures of Polish pre-war cinema from the 30’s. Out of Love for Cinema is a cycle of fourteen titles, which will be shown from December 2014 to January 2016 in Warsaw’s Iluzjon cinema. The films, all of them orphan works, were preserved, digitized, and some of them also thoroughly reconstructed, in the framework of Filmoteka’s Nitrofilm project. The project Nitrofilm – Conservation and digitalisation of pre-war feature films at the National Film Archive in Warsaw covers 43 titles from a unique collection of 159 pre-war films. The only selection criterion was that a particular title has been preserved on nitrate base, i.e. the original media from the period when the film was produced. The project aimed at setting up a specialised infrastructure for the conservation, reconstruction and the digitisation of a part of the Polish pre-war cinematography collection. Modern preservation materials, appliances and technology will enable the Polish Film Archive to perform, for the first time in Poland, a comprehensive digitisation and reconstruction of the oldest film relics. The project was co-financed by the European Regional Development Fund, Priority XI ‘Culture and Cultural Heritage’.

Download the press release Out of Love for Cinema

ACE Survey on the Implementation of the Orphan Works Directive

In January 2015, ACE conducted a survey among its members about the implementation of the Orphan Works Directive (OWD) in their countries. According to the Directive certain uses of orphan works, including cinematographic or audiovisual works, are allowed for publicly accessible libraries, educational establishments and museums, as well as archives, film or audio heritage institutions and public-service broadcasting organisations. The main goal of the survey was to find out about possible changes in national OW legislations compared to the EU Directive and whether Film Heritage Institutions are considered beneficiaries of the OWD in all national implementations of it.

Survey results:

Deadline for the transposition of the OWD in all EU Member States was 29 October 2014. By February 2015, 8 Member States had not yet transposed the Directive: Cyprus, Portugal, Luxembourg, Poland, Belgium, Romania, Slovenia and Lithuania. In those countries that implemented the law, all ACE members (Film Heritage Institutions) are considered beneficiaries. While the EU OWD only authorises the non-commercial use of orphan works, the UK has also adopted a licensing scheme for the commercial use of orphan works. This is open to all kinds of organisations and not limited to the beneficiary institutions mentioned above.

Most of the member states have published a list of sources, which need to be consulted before a work can be declared orphan. The survey showed that the national sources are almost the same as those listed in the OWD. Some member states have specified their sources and databases in more detail, while others have adopted the OWD list almost literally. A best practice example is Denmark, where no binding list is specified and beneficiaries can decide for themselves, which are the relevant sources they need to consult.

Works that are declared orphan must be registered in a database managed by the Office for Harmonisation in the Internal Market (OHIM). The beneficiary transmits the information to the designated National Competent Authority (NCA), e.g. the Ministry of Culture, the National IP Office or the Trade and Patent Office. The act of recording a work in OHIM however has no impact on the status of the work. A film is orphan once the FHI has established the orphan status. In some countries like Denmark, Finland, Germany and Sweden, beneficiaries must register orphan works directly in the OHIM database, and not via the NCA. In this case the NCA has to formally acknowledge the registered works as orphan, before it becomes publicly accessible in the OHIM database.

None of the responding member states has defined rules for compensation in case a rights holder appears and makes claims for a work registered as orphan. In Austria, the right to compensation ends 10 years after the orphan work has been used for the first time. The OW legislation in Finland foresees that on request of the beneficiary organisation any rights holder making ownership claims must provide proof that he or she is indeed the rights holder of the work in question. The survey showed that the formal implementation process of the OWD goes more or less smoothly. With a few exceptions, the law has been transposed in the spirit of the Directive. Film Heritage Institutions have started to register their orphan works in OHIM, but the bulk of film titles will be uploaded from FORWARD to OHIM, once the FORWARD system is operational in 2016.

MEP Julia Reda presents draft report on the Copyright Directive 2001

Today, at ca. 6 pm, Julia Reda, rapporteur of the Legal Affairs Committee, will present her draft report on the evalution of the Copyright Directive 2001/29/EG in the European Parliament. You can follow the live stream here.

Julia Reda, member of the German Pirate Party, advocates, among other things, for a harmonization of Copyright in the EU, for an equal implementation of the exceptions and limitations in the Member States, and for a broad exception for research and education, which should also include non-formal education. Unfortunataley, film heritage institutions and other non-profit cultural organisations are not mentionned in the report.

She is one of the few MEP who want to make the EU lobbying transparent and has published on website the meeting requests of the lobbyists and interest groups.

You can read, comment and share your comments on the draft report here.

« The devil is in the details » – Orphan works panel at the CEG meeting, 24 November 2014

At the Cinema Experts Group meeting 2014, which took place at Cinematek in Brussels, panel 3 » New life for films of which we cannot even find the authors » was dedicated to Orphan Works and the FORWARD project.

Marco Giorello, Deputy Head of the Copyright Unit, gave an update on the implementation of the Orphan Works Directive (OWD). 16 Member States have transposed it by 29^th of October, while 13 countries are still missing, namely Austria, Belgium, Bulgaria, Cyprus, Estonia, France, Latvia, Lithuania, Luxembourg, Poland, Portugal, Romania and Slovenia. The Commission is considering to start an infringement procedure for non-compliance with EU law.

The UK and Germany went beyond the implementation of the OWD and introduced additional laws: The UK adopted a licensing scheme for the commercial use of orphan works, and Germany introduced a copyright exception for books out-of-print.

The countries that have transposed the OWD legislation, did it more or less literally. This concerns the diligent search process as well as the compensation in case a rights holder shows up. However, the devil is in the details, as Marco Giorello pointed out, and therefore one has to carefully check the national regulations.

Gyta Berasnevicute, Project officer at OHIM (Office for the Harmonisation of the Internal Market) reported that 16 beneficiary institutions registered with the Orphan Works Database, which went online on 27^th of October. Two archives from the AV domain, the British Film Institute and MaNDA, the Hungarian National Digital Archive. OHIM will organise training sessions in the upcoming months how to use the Orphan Works Database.

Nicola Mazzanti, Coordinator of the FORWARD project, pointed out the main objectives of the project, which is about putting a system in place that will facilitate the search for rights holders as required by the OWD and assess the rights status of AV works.

The complexity of clearing rights for AV works (many authors, many potential rights holders) and the lack of a harmonized copyright law across the EU is a major challenge for the development of the FORWARD system. As the OWD requires that searches for rights holders have to be carried out in the Members State where the producer of the work has its main seat, diligent searches must be based on national legislations and national search requirements. The complexity of the search becomes even higher, if the work is a multinational production, maybe also involving authors from different countries. In return, the FORWARD system will store and process a lot of important information which will feed into future search processes, thus becoming a kind of “intelligent” system, learning from previous queries. Nicola Mazzanti also pointed out that the final rights assessment, the decision whether a film is in the public domain or orphan implies legal responsibility and thus cannot be made by the system, but by the beneficiary user only. Human intervention is needed in any case.

Mari Sol Pérez Guevara (DG CONNECT), moderator of the panel, raised the question when exactly a work is officially orphan: Is it when the beneficiary declares it ? Or once the information is transmitted and registered with the OHIM database via the National Competent Authority? Marco Girorello clarified that although it is an administrative obligation to register the work with OHIM, it can be used once the beneficiary has declared it orphan. Not transmitting the work to OHIMis not a copyright infringement.

The question was raised how archives should react if information or databases that beneficiaries are obliged to search are not freely available. Marco Giorello replies that he counts on the good will of the stakeholders to collaborate. The whole search procedure should not become to legalistic. If problems arise, his Unit should be informed. Cécile Despringre, Executive Director of the Society of Audiovisual Authors (SAA) reports that her organisation is willing to support the work in FORWARD.

Regarding the (un-)usefulness of some of the sources listed in the OWD (for example searching music rights in the case of a silent film), Marco Giorello states that in the spirit of the OWD only relevant sources have to be queried and that the search has to be carried out in good faith.

More information on the CEG meeting and the presentations are available on the Commission’s website « A Digital Agenda for Europe ».

OHIM database for Orphan Works online

The Office of Harmonisation in the Intenal Market (OHIM) has launched a Database for Orphan Works. Beneficiaries of the Directive 2012/28/EU (publicly accessible libraries, educational establishments, museums, archives, as well as film and AV heritage institutions and public-service broadcasting organisations) must record works in the database they have identified as orphan during the diligent search. The database allows users to search for orphan works, obtain contact information of the organisations using them, and rights holders can put an end to their orphan work status.

The database is publicly accessible at: https://oami.europa.eu/orphanworks/

More information about the OHIM database is available at: https://oami.europa.eu/ohimportal/en/web/observatory/orphan-works-database

Digitisation of film heritage in the EU is still very low – 4th Report on the Implementation of the Film Heritage Recommendation

The European Commission regularly monitors Member States’ efforts taken in response to the Film Heritage Recommendation (2005), which encourages EU countries to improve the conditions for safeguarding and exploiting Europe’s film heritage. Every two years questionnaires are sent to the national ministries. The answers are evaluated and published in the Implementation Reports.

While it is stated everywhere that the digitisation of cultural heritage is essential to preserve Europe’s cultural memory and to stimulate economic growth, the report is rather disillusioning in this respect: During the last couple of years, financial and human resources devoted to film heritage have generally remained at the same level or have been reduced. For every
€ 97 invested by the public sector in the creation of new films, only € 3 go to the preservation and digitisation of films. Only a few countries, namely France, Poland and the Scandinavian countries allocate appropriate resources.

« The picture depicted by the Report is terribly discouraging and it shows how Europe risks missing completely the digital train. New and old films are equally at risk du to lack of investment. The European media sector will dearly regret this in the future when it comes to global competition. And Europe has lost another chance to preserve its identity and history« , says Nicola Mazzanti, President of ACE , the Association of European Film Archives and Cinematheques.

Download the report « Film heritage in the EU »

The Implementation Reports N° 1-3 are available at the Commission’s website Digital Agenda For Europe

Ready to implement the Orphan Works Directive?

By 29th of October, all member states must have transposed the Directive 2012/28/EU on Orphan Works (OWD). So far, the implementation process went slow: Only Denmark, Finland, Germany, Greece, Hungary and Sweden have adopted the directive so far and France and Spain are considering to implement it before the official date.

With the adoption of the OWD in October 2012, a longstanding request of the film archives community has been fulfilled: Facilitate and legalize access to hundreds of thousand orphan works preserved in Europe’s Film Heritage Institutions (FHI). The Directive is an exception to copyright: If the rights holders cannot be found, the FHI can make use of the work. Also, if a work is orphan in one member state the status is valid across the EU.

Even in countries like Germany where the OWD entered into force 1st of January 2014, there is still very little experience with the new law. What are the reasons for this hesitant approach?

Diligent Search
A work is considered orphan if the rights holders(s) cannot be identified and/or not located. Searching for the rights holders isn’t easy, particularly if the work in question is an audiovisual work. The OWD contains a list of sources which need to be checked in order to call a work orphan. Among these sources are information and databases from film heritage institutions, national libraries, producers organisations, collective management organisations, standardization bodies etc.

First search results for older works show that film heritage institutions usually hold the most comprehensive data, while rights information from producers’ organisations and collective management societies is rarely available. The research should be tailored according to the type of work as not all sources might be relevant to the work in question. Practice will show which sources are relevant and which are not.

What kind of uses are allowed?
The OWD is a compromise negotiated between various stakeholders. Needless to say that the OWD comes with a set of limitations: Orphan Works can only be digitised and published online, cinema screenings, DVD editions are not covered.

“Beneficiaries” are only non-profit institutions. They can use an orphan work to fulfil their public interest mission. Commercial uses are not allowed. Revenues, which are generated from the reproduction of the orphan work can be used for covering the costs of the institution that has digitised orphan works and made them available to the public.

Who declares and registers a work orphan?
Only those institutions that hold the work can carry out the diligent search and declare it orphan. This is true also for possible changes to the right status in the future. In compliance with the OWD, orphan works must be registered with the OHIM database (Office for Harmonisation in the Internal Market), which is a EU registry for all types of European orphan works. As the OWD is an exception to copyright, there is no verification process for OHIM. The EU database is expected to go live by 27th of October. FORWARD will process identified AV orphan works to the OHIM registry.

What happens if a rights holder shows up?
In case a claimant steps forward, he/she is entitled to a fair compensation for the uses the FHI made of his or her work. However, the text of the EU Directive is very vague about the level of compensation. It states that “account should be taken 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 rights holders.” It will be interesting to see if national legislations will be more concrete in this respect. Germany for example has kept the vague formulation.

Evaluation
The Commission will evaluate the impact of the Directive one year after its implementation. Film and AV archives should make use of the new copyright exception to see what are the benefits and what needs to be improved. After all, the overall aim of the Directive is to provide a legal framework that facilitates access to our cultural heritage.

UK government publishes guidelines on diligent search

The UK Government has published the guidance on diligent search for right holders in copyright works. The documents covers three broad areas of copyright works: Film and sound; literary works; still visual art. The guidelines and checklists are available on the Gov.uk website.

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