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 29th 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 27th 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 ».