ВІДКРИТТЯ КУЛЬТУРНОЇ СПАДЩИНИ ЄВРОПИ: ВПЛИВ ДИРЕКТИВИ 2012/28/ЄС НА СИРІТСЬКІ ТВОРИ

Тези доповіді

УДК 347.78: 351.853.1

Литвинова Лариса Анатоліївна,
ORCID https://orcid.org/0000-0002-5802-3681,
кандидатка наук із соціальних комунікацій,
завідувачка сектору,
сектор з охорони інтелектуальної власності,
Національна бібліотека України імені В. І. Вернадського,
Київ, Україна
e-mail: nbuvtender@ukr.net

Калініна-Симончук Юлія Сергіївна,
ORCID https://orcid.org/ 0000-0002-8936-2926,
наукова співробітниця,
начальниця відділу,
відділ правового забезпечення діяльності,
Національна бібліотека України імені В. І. Вернадського,
Київ, Україна
e-mail: kcyuliya@gmail.com

ВІДКРИТТЯ КУЛЬТУРНОЇ СПАДЩИНИ ЄВРОПИ:
ВПЛИВ ДИРЕКТИВИ 2012/28/ЄС НА СИРІТСЬКІ ТВОРИ

Розглянуто правові аспекти Директиви 2012/28/ЄС Європейського Парламенту та Ради від 25 жовтня 2012 р., визначення статусу сирітського твору та його наслідки в розрізі випадків дозволеного їх використання закладами культурної спадщини шляхом оцифровування та розповсюдження.
Ключові слова: Сирітські твори, установи культурної спадщини, культурна спадщина, оцифрування та доступ, Директива 2012/28/ЄС.


UDC 347.78: 351.853.1

Larysa Lytvynova,
ORCID https://orcid.org/0000-0002-5802-3681,
Candidate in Social Communication,
Head of Sector,
Intellectual Property Protection Sector,
V. I. Vernadskyi National Library of Ukraine,
Kyiv, Ukraine
e-mail: nbuvtender@ukr.net

Yuliia Kalinina-Symonchuk,
ORCID https://orcid.org/ 0000-0002-8936-2926,
Research Associate,
Head of Department,
Legal Support Department,
V. I. Vernadskyi National Library of Ukraine,
Kyiv, Ukraine
e-mail: kcyuliya@gmail.com

UNLOCKING EUROPE’S CULTURAL HERITAGE:
THE IMPACT OF DIRECTIVE 2012/28/EU ON ORPHAN WORKS

The legal aspects of Directive 2012/28/EU of the European Parliament and the Council of October 25, 2012, determining the status of an orphan work and its consequences in terms of cases of their permitted use by cultural heritage institutions through digitization and distribution are considered.
Keywords: Orphan works, cultural heritage institutions, cultural heritage, digitization and access, Directive 2012/28/EU.

Cultural heritage institutions (CHIs) in Europe, such as libraries, archives, and museums, play a crucial role in preserving and providing access to the rich tapestry of Europe’s cultural legacy. As digital technologies advanced in the late 20th and early 21st centuries, this cultural institutions recognized the potential to digitize their collections to enhance access and preservation. However, many works in their collections were orphan works. Orphan works encompass a wide range of cultural artifacts, including books, photographs, films, and artworks. Despite their historical and cultural significance, these works were often not accessible due to uncertainty about their copyright status.
The absence of a clear legal framework for handling orphan works created inconsistencies and legal uncertainties. CHIs hesitated to digitize and provide access to these works due to potential copyright infringement risks if a rights holder emerged later. This resulted in a vast amount of cultural material remaining hidden from public view, hindering research, education, and cultural enrichment. There was a pressing need for a unified approach to address these challenges across the European Union (EU).
Directive 2012/28/EU of the European Parliament and of the Council, adopted on October 25, 2012, on certain permitted uses of orphan works provided a harmonized legal framework for the use of orphan works across the European Union, offering cultural heritage institutions the opportunity to digitize and make available these forgotten works. Directive 2012/28/EU, often referred to as the "Orphan Works Directive", sought to balance the interests of rights holders with the public interest in accessing and preserving cultural heritage.
Directive 2012/28/EU defines orphan works as works for which no right holder can be identified or located despite a diligent search by the cultural heritage institution. This definition includes various types of works, such as books, journals, newspapers, magazines or other writings contained in the collections of CHIs.
Member states are required to implement national legislation that mandates cultural heritage institutions to conduct a diligent search for rights holders before using orphan works. Directive 2012/28/EU provides guidelines on what constitutes a diligent search, including criteria such as the type of work and available sources.
The directive permits cultural heritage institutions to digitize orphan works and make them available to the public for non-commercial purposes, such as online access and inclusion in digital collections. This provision aims to enhance access to cultural heritage materials while ensuring that copyright holders' rights are respected.
Directive 2012/28/EU mandates the establishment of a publicly accessible database managed by the European Intellectual Property Office (EUIPO). This database contains information on orphan works, including details about the works and the institutions using them.
The directive includes safeguards to protect the interests of right holders who may emerge later. Institutions must provide mechanisms for rights holders to assert their rights and seek fair compensation if applicable.
Directive 2012/28/EU provides cultural heritage institutions with a unique opportunity to unlock their collections and make orphan works accessible to the public. One of the primary benefits of Directive 2012/28/EU is the increased access it provides to cultural heritage materials that might otherwise remain inaccessible. By allowing institutions to digitize and make available orphan works, the directive facilitates greater public access to a wider array of cultural materials, including rare and historically significant works. Digitization also plays a critical role in preserving fragile and vulnerable materials. By creating digital copies, institutions can ensure that these works are not lost or damaged, safeguarding them for future generations. This is particularly important for rare books, manuscripts, photographs, and other fragile items held by libraries and archives.
The mutual recognition of orphan work status across EU member states facilitates broader access to cultural materials. Once a work is deemed orphan in one member state, this status is recognized throughout the EU, enabling institutions to share these works across borders without additional legal hurdles.
Improved access to orphan works benefits scholars, students, and the general public in their pursuit of knowledge. Previously inaccessible materials can now be used for academic research, educational purposes, and personal enrichment, contributing to a more comprehensive understanding of European history and culture.
Directive 2012/28/EU supports the development of digital libraries like Europeana, enhancing the EU's digital cultural landscape. These platforms aggregate digitized content from various institutions, making European cultural heritage more accessible to a global audience. The directive does not provide a uniform solution for orphan works outside its scope, such as unpublished works or works by non-EU creators, leading to legal complexities. While the directive provides some protection, institutions may still face challenges if a rights holder emerges after a work has been digitized and made available. Directive 2012/28/EU allows rights holders to put an end to the orphan work status, which could lead to the removal of digitized content or potential compensation claims. While the directive provides a common framework, its implementation can vary across EU member states, potentially leading to inconsistencies in how orphan works are handled in different countries. Directive 2012/28/EU primarily focuses on non-commercial uses by cultural heritage institutions, limiting potential revenue streams that could offset digitization costs.
While Ukraine is not an EU member state, it has made significant efforts to align its copyright laws with European standards, including those related to orphan works. Through amendments to its copyright law and its commitment to international agreements, Ukraine has integrated principles similar to those of Directive 2012/28/EU. On January 1, 2023, Ukraine implemented a new copyright law that incorporates provisions for the use of orphan works and established a legal basis for their use. This law aims to facilitate the digitisation and dissemination of orphan works by cultural heritage institutions such as libraries, museums with open access to visitors and archives. Similar to other jurisdictions, Ukraine defines orphan works as copyrighted materials for which the rights holders cannot be identified or diligent search efforts. This definition forms the basis for determining the scope and application of regulations concerning orphan works. Ukrainian law requires cultural institutions and users of orphan works to conduct diligent searches before utilizing these materials. The purpose of the diligent search is to make a reasonable effort to locate rights holders or ascertain that they cannot be found. This search should be thorough and documented, ensuring that all reasonable efforts have been made to locate the rights holders. Once a diligent search has been conducted without identifying the rights holder, Ukrainian law typically allows for specific uses of orphan works. These uses often include educational, research, archival, and cultural purposes, aligning with international best practices and copyright norms. The law mandates the creation of intellectual property registers, which will include information on orphan works. These registers are expected to facilitate the identification of rights holders in the future. Ukraine may have established mechanisms for registering orphan works and maintaining a database to record information about these works and their use. This database helps ensure transparency and assists in rights clearance processes for users of orphan works.
Ukraine’s approach to regulating orphan works reflects a balance between promoting access to cultural heritage and protecting intellectual property rights. By establishing clear guidelines, conducting diligent searches, and implementing safeguards, Ukraine aims to facilitate the responsible use of orphan works while complying with domestic and international copyright obligations.
In summary, Directive 2012/28/EU represents a crucial step towards unlocking the potential of orphan works within Europe's rich cultural tapestry. By balancing accessibility with respect for intellectual property rights, cultural heritage institutions can harness these works to enrich education, research, and cultural exchange across borders. However, ongoing collaboration, investment, and thoughtful policymaking are essential to navigate the challenges and fully realize the directive's objectives in preserving and promoting Europe's diverse cultural heritage.