Edited by Irini A. Stamatoudi and Paul Torremans
This chapter analyses Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works. This Directive is the result of a legislative process that addresses the legal situation where authors or rights holders of copyright protected works cannot be identified or located. It does this by establishing the conditions under which the orphan work status can be declared throughout the EU region, and under which such works can legitimately be reproduced and made available online. Without lengthy consideration of the actual risk and commercial consequences for a cultural heritage institution to be sued by an author who has found out that his work was considered to be an orphan, the EU accepted that 'soft-law' initiatives such as the 2006 Recommendation on the digitisation and online accessibility of cultural content and preservation were not sufficient to address the orphan works issue in an appropriate manner. Despite the Recommendation, only a few Member States have implemented orphan works legislation. Moreover, developments at the national level were circumscribed by the fact that they were not capable of addressing the issues posed by the online environment as they limited online access to citizens resident in their national territories. This was ignoring the cultural and educational potential offered by cross-border access of content.
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