Works not available on the market and orphan works in French Act 2012-287 of 1 March 2012

Abstract

The paper analyses the content of French Act No. 2012-287, of 1 March 2012, on the digital exploitation of out-of-commerce twentieth-century books, in order to show the role of works unavailable on the market and of orphan works in the debate on the public domain. It reconstructs the European antecedents — the High Level Expert Group on digital libraries, the Comité des Sages report, the Digital Agenda for Europe, the Memorandum of Understanding of 20 September 2011 and the Orphan Works Directive — and describes the system introduced into the French Intellectual Property Code. It examines the concept of an unavailable work, the ReLIRE database compiled by the National Library of France, the opt-out mechanism available to rightholders, the assignment to a collecting society of the granting of non-exclusive licences, and the tension between the exclusive rights of authors and the public interest in access to culture. The text holds that transposition of the Directive without a broader review of the guiding principles of copyright may be a lost opportunity, and points to the French case as a reference in resolving the problem of out-of-commerce works.