How to Build an Orphanage, and Why

• Author: Katharina de la Durantaye
• Position: Ph.D, LL.M. (Yale), Professor of Law at Humboldt University, Berlin
• Pages: 226-235

2011

Katharina de la Durantaye

226

3

© 2011 Katharina de la Durantaye

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Recommended citation: Dura ntaye, How to Build an ,Orphanage, and Why, 2 (2011) JIPITEC 226, para 1.

Abstract: Currently, lawmakers on both sides of the

Atlantic are struggling with the problem of orphan

works. In the impact assessment of its proposal for

a directive of the European Parliament and of the

Council on certain permitted uses of orphan works,

the Eurpean Commission mentions six possible ways

of dealing with the problem. Three of the six (a stat-

utory exception to copyright; extended collective li-

censing; an orphan-specific license granted by col-

lecting societies) have each had their heyday during

the past few years. This article examines how and

why these changes in popularity occurred. In addi-

tion, it explains why a limitation on remedies would

be the most adequate solution for the problem in Eu-

rope.

Keywords: Copyright; Orphan Works; European Union; Collective Licenses; Limitations on Remedies;

How to Build an Orphanage, and Why

by Katharina de la Durantaye, Ph.D, LL.M. (Yale), Professor of Law at Humboldt University, Berlin

A. Introduction

1

    

of the Atlantic and elsewhere have been struggling

with the problem of orphan works. Only few sta-

tes have enacted provisions that allow for the use

of works whose rights holders are unknown or can-

not be found.

2

The issue received public attention after the an-

1

That settlement, which Google concluded with pu-

blishers and authors who had sued the company for

the unauthorized use of their works as part of its

“Google Books” project, would have allowed Google

(and only Google) the widespread use of orphan

books.

2

By the time the settlement was proposed,

three orphan works bills had been introduced into

the US Congress.3

3

In Europe, the European Commission has taken mul-

tiple steps to encourage its member states to pro-

vide for the use of orphan works.4 As of now, no or-

phan works legislation has been passed in the US,

and the Commission’s attempts have been without

much impact. Between 2006, when the Commission

  

only Hungary has enacted an orphan works statute.

5

4



Commission decided to take matters into its own

hands. On May 24, 2011, it presented a proposal for

a directive of the European Parliament and of the

Council on certain permitted uses of orphan works.

6

In its accompanying memorandum, the Commission

mentions six possible ways of dealing with the or-

phan works problem:

 -

 -

-



public body, and (6) the mutual recognition of na-

7