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Today the European Parliament passed with an overwhelming majority – 531 voting in favor, 11 against and 65 abstentions – a compromise proposal for a directive on certain permitted uses of orphan works. In Europe, orphan works are a much greater problem than, for example, in the USA, because European copyright has for a much longer time featured automatic protection. As a consequence, finding rights holders is more difficult than in the USA, where works had to be registered until the end of the 1980s. And due to ever-longer protection terms, the number of orphan works is going to increase even further every year, making access to our common cultural heritage increasingly difficult.

The so-called orphan works directive addresses the problem by allowing public-sector institutions such as libraries, museums, archives, educational establishments and film heritage institutions to digitize and publicize orphan works after conducting a “diligent search”. What constitutes a “diligant search” is outlined in more detail in a “Memorandum of Understanding on Diligent Search Guidelines for Orphan Works”.

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Last week the European Parliament rejected the Anti-Counterfeiting Trade Agreement (ACTA, see also “ACTA as a Case of Strategic Ambiguity“) with 478 voting against the treaty, 39 in favour and 165 MEPs abstaining. Commenting on this outcome, Joe McNamee from the ACTA-critical NGO European Digital Rights (EDRi) stated that “ACTA is not the end. ACTA is the beginning.” In his optimistic account, the rejection of ACTA has substantially changed the debate on intellectual property rights regulation in Europe:

Thanks to SOPA, European citizens better understood the dangers of ACTA. Thanks to the anti-ACTA campaign, it would be politically crazy for the Commission to launch the criminal sanctions Directive. Thanks to ACTA, there is broad understanding in the European Parliament of just how bad IPRED really is and any review now, if the Commission has the courage to re-open it, is more likely to improve the Directive rather than increase its repressive measures.

However, a recent op-ed by Canadian copyright scholar Michael Geist, illustrates why ACTA’s contents might not be so dead after all. Referring to leaked documents of negations between Canada and the EU Commission on the “Comprehensive Economic and Trade Agreement” (CETA):

According to the leaked document, dated February 2012, Canada and the EU have already agreed to incorporate many of the ACTA enforcement provisions into CETA, including the rules on general obligations on enforcement, preserving evidence, damages, injunctions, and border measure rules. One of these provisions even specifically references ACTA.

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The Book

Governance across borders: transnational fields and transversal themes. Leonhard Dobusch, Philip Mader and Sigrid Quack (eds.), 2013, epubli publishers.
March 2023

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