On 10 April 2013 the German cabinet agreed a legislative proposal on orphan and out-of-commerce works. The proposal implements the EU’s directive on certain permitted uses of orphan works (2012/28/EU) which came into force in October 2012.

The draft legislation will allow certain institutions to digitise and reproduce works whose owner is unknown or cannot be located (orphan works). The changes modify current German copyright law under which reproducing copyright-protected works or making them publicly accessible is only permitted with the prior express consent of the copyright holder.

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Orphan works

Under §61, the proposal adopts the definition of orphan works laid down in the EU’s directive. Orphan works therefore include books, journals, newspapers and other writings; cinematographic, audio-visual works and phonograms which are contained in collections of publicly accessible institutions and for which, after a diligent search, no copyright holder can be located or identified.

Publicly accessible institutions include those in public libraries, educational establishments, museums, archives, film or audio heritage institutions and public-service broadcasting organisations will benefit from the legislation.

Institutions will only be able to use orphan works when pursuing their public interest aims.

Before reproducing the works or making them publicly available, institutions will be required to undertake a diligent search for all possible copyright holders.

§61a of the proposal requires the diligent search to be conducted initially in the EU member state in which the work was first published.

Additionally, where there is an indication that other copyright holders exist in other member states, the institutions are required to consult information sources in those member states.

Institutions will also be required to document the search and forward the information to Germany’s Patent and Trade Mark Officer.

Removal of orphan work status and reasonable compensation

Under §61b, the proposal foresees that the status as orphan work will end in the case that a copyright holder subsequently becomes known or is located.

In such cases institutions will be required to immediately cease using the work and institutions will be under a duty to pay reasonable compensation to the copyright holder for any use made of the work.

Right to re-publish scientific articles

In addition, the legislative proposal creates a right for authors of scientific texts published in journals to re-publish the text online. Authors obtain this right one year after initial publication of the text and can only re-publish it for non-commercial purposes. This will apply to works which were publicly funded or undertaken at a research institute funded by an institution.

Out-of-commerce works

The draft legislation also foresees a right for institutions to digitise and publish online so-called “out-of-commerce” printed works.

Reaction from Wilde Beuger Solmecke

Lawyer and partner at the Cologne-based media law firm Wilde Beuger Solmecke welcomed the draft legislation saying:

“It is important to guarantee access to European cultural heritage. The proposal strikes a satisfactory balance between ensuring orphan works can be made available to the public and enabling a copyright holder, who is subsequently identified, to receive reasonable payment for the use of his work. I also welcome that the copyright holder then has a choice of how the work should be used in the future.”