On 1 January 2014, the new German law on orphan and out-of-commerce works came into force.
Among other things, the aim of the law revision was 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 law also introduces provisions for authors of scientific publications, who now 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 provisions are:
Amendments to the German Copyright Act (“Urheberrechtsgesetz”):
Publicly accessible and established libraries and institutions are 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.
Amendments to the German Copyright Administration Act (“Urheberrechtswahrnehmungsgesetz”):
The digitisation and making available of out-of-commerce works is enabled, 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 German law now introduced 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 is held with the German Patent and Trademark Office, and all entries are made available to the public via the website www.dpma.de.
The legislation (in German) is available here.