Queen Mary Journal of Intellectual Property

A critical view on the European draft directive for orphan works

Robin Kerremans * *

Keywords: copyright, orphan works, cultural institutions, European draft directive

Abstract

For some time now, the orphan works problem has had its place on the agenda of the European Commission. Orphan works are copyright protected works whose copyright holder(s) cannot be identified or located. Problems with regard to this category of works arise when ‘users’ wish to exploit these orphan works beyond the scope of existing copyright exceptions. For those forms of exploitation the general rule of a prior consent of (all) the copyright (and neighbouring right) holders prevails. This article will describe and critically assess the recently released draft proposal for a so-called ‘European orphan works Directive’ and the impact assessment study preceding this draft. This article will investigate the place of this draft within the existing European copyright acquis and formulate some ideas for improvement or balanced implementation of this future piece of European legislation.

Author Notes

Robin has been involved in multiple public research projects concerning digital archiving and copyright in the information society, media law and competition law in the light of new technology. He conducts his research with the funding of the Flemish government, on behalf of the Institute for Broadband Technology (IBBT). This article was written in the context of the research project ‘Archipel: Network-centric approach to sustainable digital archives’ <http://www.archipelproject.be/>.

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