Prior authorizations are necessary to make works protected by copyright available to the public in an online environment. When the relevant copyright owner cannot be identified or found the works in question are known as orphan works. Consequently, the necessary authorizations to make available works online cannot be obtained. Institutions that make works available online to the public without prior authorization risk infringing copyright.
European Commission’s works in order to develop a legislative initiative in the area of orphan works are expected to present its outcome just before or at the beginning of the Polish Presidency. Introduction of proper regulations will enable digitalization of significant part of cultural heritage and as a consequence prevent it from irreversible loss. That initiative was mentioned in European Digital Agenda, Which is part of the Europe 2020 Strategy. This is the most important Polish Presidency’s sector priority in the area of copyrights.
The main objective of the directive is to create a legal framework to ensure the lawful, cross-border online access to orphan works contain in online digital libraries or archives operated by variety of institutions.
The initiative was firstly announced in the Commission’s 2006 Recommendation on the digitization and online accessibility of cultural content and digital preservation (24.08.2006, COM(2006)585). The necessity of undertaking of measures at the European level concerning orphan works was reiterated in consultations conducted by the Commission in 2008 with regard to the “Green Paper on Copyrights in the Knowledge Economy” (16.07.2008, COM(2008) 466). This consultations pointed out the demand for on–line dissemination of works or voice recordings with the educational, historical or cultural value, due to the fact that that type of using is relatively cheap and permit to reach vast amount of recipients. Unfortunately in many cases the copyright owner cannot be identified or the owner’s whereabouts cannot be determined. The lack of proper regulations in the area of orphan works disable using such works. As a consequence of public consultation, European Commission prepared a communication “Copyright in the Knowledge Economy” (19.10.2009). This document contained the announcement of impact assessment in the area of orphan works. This announcement was repeated in the join document of DG MARKT and DG INFSO „Creative Content in a European Digital Single Market: Challenges for the Future” (22.10.2009), which initiated consultations regarding digital distribution of works in the Internal Market. In the communication “European Digital Agenda” (26.08.2010, COM(2010) 245/2), European Commission announced issuing in 2010 the proposal for the directive. It was confirmed in the commission agenda for 2010, but due to the prolonged discussions within Commission, the initiative was postponed to 2011.On May 24th, 2011, the European Commission adopted the proposal for a directive on certain permitted uses of orphan works.
Despite the initiatives mentioned hereabove only a handful of Member States have implemented orphan works legislation. The few existing national solutions are circumscribed by the fact that they limit online access to citizens resident in their national territories.
Apart from the law harmonized by European directives, lots of obligations of the EU Member States in the area of copyright and enforcement of IPR stem from the international treaties, signed by EU. These encompass TRIPS (agreement on Trade-Related Aspects of Intellectual Property Rights) and the copyright treaties of World Intellectual Property Organization (WIPO). In December 2009 European Union signed WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty (Poland ratified those treaties before joining EU).
The Polish Presidency will be responsible for the preparation and settlement of the EU member states’ position and for the participation in negotiations with third-parties on behalf of member states, within the framework of Intellectual Property Rights Working Group and of coordination meetings associated with WIPO Committees and General Assemblies. The Polish Presidency will also represent European Union in the negotiation of international treaties, conventions and trade agreements.
The discussions, which are currently in progress, are related to:
• the protection of rights of broadcasting organisations,
• protection of artistic performance in audiovisual works,
• limitations and exceptions, especially concerning visually impaired persons and exceptions for libraries and archives,
• preservation of traditional culture and folklore.
The Polish Presidency will have to coordinate EU position on the Treaty on the Protection of Broadcasting Organisations that is to be negotiated in the Council of Europe.
Directive should established the basic rules for effective and transparent functioning of collective management organizations in member states and create legal framework for pan-european licensing of works.
European Commission is planning to adopt the proposal of the directive regarding collective management of copyright and relates rights in the autumn 2011. The initiative was announced in European Digital Agenda. Collective management will be one of the issues of conference organized in Warsaw by Ministry of Culture and National Heritage on 18-20th July.
There is no binding regulation concerning collective management of rights that currently exists at European level. In the communication regarding the management of copyright and related rights in the Internal Market (16.04.2004, COM(2004) 261), European Commission announced undertaking legislative initiative including certain aspects of collective management and rules of functioning of collective management organizations. However this idea was abandoned and Commission remained in non-binding instruments with limited range. The recommendation on collective cross-border management of copyright and related rights for legitimate online music services (18.10.2005, 2005/737/WE) was published in May 2005. In 2008 the European Parliament submitted the resolution concerning the same problem (25.09.2008, P6_TA(2008)0462), which criticized Commission’s point of view. One of the elements of Commission’s stance in the area of collective management was also the decision relating to the case COMP/C-2/38.698 — CISAC, concerning territorial limits applied by collective management organizations.
The return to the discussion about legislative proposal was announced in joint document of DG MARKT and DG INFSO „Creative Content in a European Digital Single Market: Challenges for the Future” (22.10.2009), which initiated consultations regarding digital distribution of works in the Internal Market. In the communication “European Digital Agenda” (26.08.2010, COM(2010) 245/2), European Commission announced issuing in 2010 the proposal for the directive. It was confirmed in the commission agenda for 2010, but due to the prolonged discussions within Commission, the initiative was postponed to 2011.
The aim of that regulation is to provide European Observatory on Counterfeiting and Piracy with institutional service. Currently the service is done by the European Commission. The Polish Presidency will conduct suitable measures for the proposal to be accepted.
On September 25th 2008 the Council of the European Union adopted resolution regarding Comprehensive European Anti-counterfeiting and Anti-piracy Plan in which the European Commission was summoned to create European Observatory on Counterfeiting and Piracy. Observatory commenced its works on April 4th 2009. On September 11th 2009 the European Commission adopted the communication “Enhancing the enforcement of intellectual property rights in the internal market” (COM(2009) 467 final). The purpose of this document was to establish Observatory’s objectives and tasks. Currently the main problem is to provide Observatory with constant institutional service.
On May 24th, 2011 European Commission has adopted the proposal for a regulation on entrusting the Office for Harmonisation in the Internal Market (Trade Marks and Designs) with certain tasks related to the protection of intellectual property rights, including the assembling of public and private sector representatives as a European Observatory on Counterfeiting and Piracy.
Proposal of the amendment of the directive 2004/48/EC on the enforcement of intellectual property rights is planned for the fourth quarter of 2011. According to the conclusions from the European Commission’s report concerning directive’s implementation, published in December 2010, the proposal will aim to adjust the directive to the challenges related to the enforcement of intellectual property rights on-line.
On December 22nd 2010 the European Commission adopted the report concerning implementation of the directive 2004/48/EC on the enforcement of intellectual property rights (COM(2010) 779). One of the main conclusions from Commission’s analyses and consultations is maladjustment of the directive to the on-line challenges regarding enforcement of intellectual property rights.