EU institutions and member states are currently in the process of enacting regulations and national laws to implement the EU Directive on Copyright in the Digital Single Market, adopted in April last year.
One of the directive’s sections - Articles 8 to 11 - authorizes the scanning and use of “out-of-commerce works” included in European library collections. The text will have an impact on EU-based authors but also on non-European writers around the world.
The IFJ has co-signed a position paper submitted jointly with the National Writers Union (NWU), and the Science Fiction and Fantasy Writers of America, Inc.(SFWA) to the EU Intellectual Property Office (EUIPO) defending authors' interests when addressing works that are deemed to be "out of commerce".
A work is considered "out of commerce" when the work, in all its versions, is not available through customary channels of commerce.
The joint submission seeks to ensure that authors, including US authors, have as wide a choice as possible, which can be exercised as easily as possible, as to whether their works are included in EU exceptions and limitations to copyright. Concerns about the impact of such changes have previously been expressed in earlier submissions to EU institutions involved in the legislative process.
The IFJ and NWU have also joined efforts with other international allies - including the International Federation of Reprographic Rights Organisations( IFRRO)and other US organizations of authors, including members of the Authors Coalition of America- in a bid to ensure greater protections for authors.
The Directive charges EUIPO with developing and operating a “single portal” through which authors will be able to search for works that have been deemed “out of commerce” in any EU member state. The EU body can exclude any or all of an author's works from various exceptions and limitations to copyright created by the Directive, which requires that this “opt-out” process be made “easy” and “effective”.
But the IFJ and its allies have warned that the process currently proposed by the EUIPO's planned “out-of-commerce works” portal would be neither easy nor effective, especially if opt-out requests have to be submitted separately to each of the 27 EU member states. It would entail itemizing an author’s lifetime of works, or require authors who want to opt out, to search the portal every few months, and wait until after each work is identified as “out of commerce”, before it can be excluded.
Instead, the submission co-signed by the IFJ recommends:
Integrating the “orphan works” and “out-of-commerce works” portals to avoid duplication of effort both by the EUIPO and by rights holders, minimizing the burdens on authors and avoiding violating the provisions of the Berne Convention.
Ensuring authors can effectively exclude any or all of their works from exceptions and limitations (because any such use would be unremunerated), at any time, even before they have been deemed “out-of-commerce”.
Including non-EU authors as a distinct class of stakeholders in the dialogues required by Article 11 of the Directive, and ensuring that foreign authors and other foreign stakeholders can participate remotely. The IFJ, NWU, and SFWA have already indicated their desire to participate in these stakeholder dialogues with the EUIPO.
IFJ General Secretary Anthony Bellanger said: “The IFJ and its allies will continue to monitor the implementation of the EU Directive on Copyright and to speak up for the interests of writers worldwide”.
For more information on the IFJ’s Authors’ rights programme, consult this page : https://www.ifj.org/what/workers-rights/authors-rights.html
For more on the NWU’s Copyright defence programme click here: https://nwu.org/issues-we-care-about/copyright-defense/