Modèle:ConsultCE2014:Library and archive rights to make available orphan works free-of-charge and with wide use rights

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4. Library and archive rights to make available orphan works free-of-charge and with wide use rights

For years, we have known what is the right solution for giving back to our common heritage the very many orphan works. One has only to put in place an extended collective licence mechanism, giving libraries and archives as well as any other player whose mission it is, the freedom to make orphan works available in digital form, and to every person the freedom to access them and use them at least without commercial aim. This scheme would not require payment by users, but could be associated with a guarantee fund (financed by the State or parafiscal resources) which would protect users against claims of reappearing right holders (in general publishers or heirs of deceased artists). In no case should there be any compensation for use prior to the reappearance of right holders. Scandinavian countries have put in place schemes of this type, and their compatibility with the European legal framework does not raise any doubt.

A European directive proposal presently in legislative process institutes (as it stands) an imperfect regime for orphan works. On the bright side, it aims at making possible for libraries and archives to make them available to the public. However, the present text has severe flaws. It requires a "diligent search" before an user can consider a work to be orphan. This entails a significant legal uncertainty, and may lead libraries (often risk-adverse) to abstain from exerting their rights. It puts in place compensations for use of works before the reappearance of right holders. This risks leading to ambush behaviour, where some right holders would let use develop and when it it becomes significant ask for compensation (see point 12). It lists limitatively the permitted uses, including forms of use that are not subject to copyright such as indexing and cataloguing. Finally, the list of possible beneficiaries is limited.

Despite these flaws, the European text is infinitely preferable to the French law on out-of-print works, that is entirely focused on commercial exploitation rights under a collective management scheme, despoils authors by leaving them only with an opt-out possibility, de facto forbids non-market uses, and deprives the public from the access to orphan works. Orphan works should be treated completely separately from out-of-print works. For the latter, it is authors who must be empowered, through the imposition of a separate contract for digital publishing and through a systematic return to authors of rights in case a paper book is no long in print (see point 7).