On 6 June, the European Parliament and Council informally agreed draft legislation to deal with orphan works, so called because the copyright owner is unknown. Currently, orphan works cannot be made available without the risk of infringing copyright and this legislation attempts to reduce the problem of works effectively being lost to society by people avoiding using them, something the Hargreaves Review has referred to as "cultural negligence".
Under the draft legislation, a work is an orphan work if a diligent search has been made in good faith and it was not possible to identify the copyright holder. Although the draft legislation sets out criteria for conducting this search, the press release does not suggest that there will be any specific criteria for evaluating whether such a search is diligent. Once a work is classified as orphan there will be a mutual recognition of its orphan status throughout the EU. Orphan works can be used for non-profit purposes. However, there is scope for Member States to authorise use of the orphan works to generate revenue if the revenue is used to maintain records of the diligent search and the use of the orphan works.
If the rights holder appears, they could put an end to the orphan status and claim a small compensation for the use made out of the work. To protect public institutions from the risk of having to pay large sums to copyright owners who come out of the woodwork, such compensation is to be calculated on a case by case basis, taking into account the actual damage done to the copyright owner's interests and the fact that the use was non-commercial.
It will be interesting to see how this issues develops and, in addition, to see whether there will be any further copyright harmonisation. Lidia Geringer de Oedenberg, the MEP who is steering the legislation through Parliament and who led the negotiations, commented that the legislation on orphan works is intended to be a "first step towards harmonisation of copyright rules in the EU". That said, Maria Martin-Prat, head of the Commission's Copyright Unit, has been recently quoted as saying further major steps to harmonise copyright are not on the agenda. Orphan works were also considered in the UK Copyright Consultation (see above).
Link to the Press release here.