German draft proposal for legislation on orphan and out-of-commerce works

On 20 February 2013, the German Ministry of Justice proposed new draft legislation for, inter alia, orphan and out-of-commerce works.

Among other things, the aim of the law revision is to implement Directive 2012/28/EU of 25 October 2012 on certain permitted uses for orphan works, and to introduce a collective management-based system for out-of-commerce works. The RROs concerned are the IFRRO members VG Wort (for text) and VG Bild-Kunst (for images).

The German government also includes draft provisions for authors of scientific publications which have been financed at least to an amount of 50% by publicly funded means. Authors will have the opportunity to re-publish their articles after a 12 months deadline following the first publication, provided that it is for a non-commercial purpose.

More specifically, the main amendment proposals are:

Proposed Amendments to the German Copyright Act (“Urheberrechtsgesetz”):
Publicly accessible and established libraries and institutions will be allowed to digitise orphan works and make these available online, following a diligent search for the rightholders (inter alia, via searching the database of VG Wort (for text-based works) and VG Bild-Kunst (for image-based works), and the ARROW system), in order to fulfil their cultural heritage mission, in accordance with Directive 2012/28/EU.

Proposed Amendments to the German Copyright Administration Act (“Urheberrechtswahrnehmungsgesetz”):
The digitisation and making available of out-of-commerce works will be possible, provided that certain conditions are fulfilled. The proposal is based on the European Commission-facilitated Memorandum of Understanding (MoU), signed on 20 September 2011 by the relevant organisations representing stakeholders concerned (incl. IFRRO), setting out key principles on the digitisation and making available of out-of-commerce works by publicly accessible libraries and similar institutions in the EU. The draft suggests to introduce a legal presumption that an RRO in the respective field is assumed to represent non-mandating rightholders (“outsiders”), subject to the following conditions: (i) the works are published before 1 January 1966; (ii) the works are contained in the archives of public institutions; (iii) uses are limited to the reproduction and making available for non-commercial purposes; (iv) entry of the works into a public registry of out-of-commerce works, following a request by an RRO; (v) the rightholder has not objected, vis-à-vis the RRO, to the entry into the registry within 6 weeks after the entry. The registry of out-of-commerce works will be held with the German Patent and Trademark Office, and all entries will be made available to the public via the website www.dpma.de.

The draft legislation (in German) is here