Final approval of EU orphan works directive

These seem indeed to be exciting days for issues surrounding copyright and digitisation. 

Yesterday, Google and the Association of American Publishers concluded a settlement agreement that, while putting an end to a seven-year long running litigation in the US over the Google Library Project, will provide access to publishers' in-copyright books and journals digitised by Google (see IPKat report here).

On the same day, but on the other side of the Atlantic, as has been promptly reported by Iona on The 1709 Blog, the EU Council adopted the long-awaited Directive on certain permitted used of orphan works.

Michel Barnier, EU Commissioner responsible for internal market and services, said:

"Today's adoption of the Orphan Works Directive is a significant achievement in our efforts to create a digital single market. It will enable easy online access for all citizens to our cultural heritage. The swift and successful outcome of the legislative process and the broad consensus reached both in the Council and the Parliament [on which, see IPKat report here] prove that by working together we can agree on measures to ensure that the EU copyright rules are fit for purpose in the digital age [but not every EU commissioner would probably agree on this] . Alongside other achievements such as the European Memorandum of Understanding to facilitate the mass digitisation of out-of-commerce books, this Directive is one more step in making licensing and online access to cultural content easier."

It's almost impossible to
impress Merpel

The Directive intends to "provide Europe's libraries, archives, film heritage institutions, public broadcasters and other organisations acting in the public interest with the appropriate legal framework to provide on-line cross-border access to orphan works contained in their collections. The Directive is a central element of the Commission's strategy to create an enabling framework for the use of intellectual property announced in its intellectual property strategy adopted in May 2011."

The Council's approval of the text of the Directive (which has undergone a series of amendments following the Commission’s proposal last year) represents the final step in the legislative procedure and is now going to be followed by publication in the Official Journal of the European Union. After that, Member States will have two years to transpose it into national law.

Merpel maliciously suggests that the text approved yesterday has the potential to give rise to serious controversy at the level of Member States, both when these will transpose the Directive into their own national legislations and when orphan work-related litigation will ensue before national judges. Courts will in fact have to apply provisions which at the moment appear fairly vague. It is likely that national judges will revert (a lot) to the Court of Justice of the European Union for guidance. Will this have to fill in the (several) blanks left behind by EU legislature?