Law Transposing Directive 2012/28/eu Of The European Parliament And The Council Of October 25, 2012 On Certain Permitted Uses Of Works Orphan Girls (1)

Original Language Title: Loi transposant la directive 2012/28/UE du Parlement européen et du Conseil du 25 octobre 2012 sur certaines utilisations autorisées des oeuvres orphelines (1)

Read the untranslated law here: http://www.ejustice.just.fgov.be/cgi/article_body.pl?numac=2015011331&caller=list&article_lang=F&row_id=200&numero=269&pub_date=2015-08-24&dt=LOI&language=fr&fr=f&choix1=ET&choix2=ET&fromtab=+moftxt&trier=publication&sql=dt+=+'LOI'&tri=pd+AS+RANK+

Posted the: 2015-08-24 Numac: 2015011331 SERVICE PUBLIC FÉDÉRAL ÉCONOMIE, P.M.E., CLASSES average and energy July 20, 2015. -Law transposing directive 2012/28/EC of the European Parliament and the Council of October 25, 2012 on certain permitted uses of works orphans (1) PHILIPPE, King of the Belgians, to all, present and to come, hi.
The Chambers have adopted and we endorse the following: Chapter 1. -Available general Article 1.
This Act regulates a matter referred to in article 74 of the Constitution.
CHAPTER 2. -Works orphan art. 2. the present chapter transposes directive 2012/28/EU of the European Parliament and of the Council of October 25, 2012 on certain permitted uses of orphan works.
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3. article I.13 of the Economic Law Code, inserted by the law of April 19, 2014, is supplemented by an 8 °, as follows: "8 ° Office for harmonization in the internal market: the Office for harmonization in the internal market established by article 2 of Regulation (EC) No 207/2009 of the Council of 26 February 2009 on the Community trade mark '.
S. 4. article XI.164 of the Code, inserted by the law of April 19, 2014, is replaced by the following: 'article XI.164. this title implements the following directives: 1 ° directive 93/83/EEC of the Council of 27 September 1993 on the coordination of certain rules of the law of copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission;
2 ° directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases;
3 ° directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of the law of copyright and related rights in the information society;
(4) directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 on the resale right for the benefit of the author of a work of art original;
5 ° directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental and lending right and on certain rights related to copyright in the field of intellectual property;
6 ° directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights.
7 ° 28-2012-EU directive of the European Parliament and of the Council of October 25, 2012 on certain permitted uses of orphan works. "."
S. 5 A article XI.168, paragraph 1, of the same Code, inserted by the law of April 19, 2014, the words "and without prejudice to article XI.245/1, § 2," shall be inserted between the words "when copyright is undivided" and the words "the exercise of this right is regulated by conventions".
S. 6. in the same Code, it is inserted an article XI.192/1 as follows: "article XI.192/1. Libraries, educational institutions and museums accessible to the public, as well as archives, the custodians of the heritage film or sound institutions and public service broadcasting bodies established in the Member States of the Union European and the European economic area, to achieve objectives related to their missions of public interest, are authorized to use orphan works in their collections to one of the following ways and the conditions laid down in article XI.245/5 (: a) provision to the public of the orphan work within the meaning of article XI.165, § 1, paragraph 4;
(b)) the reproduction within the meaning of article XI.165, § 1, paragraph 1, scanning, placing at disposal, indexing, cataloguing, preservation, or restoration purposes. "."
S. 7. article XI.193 of the Code, inserted by the law of April 19, 2014, is replaced by the following: 'article XI.193. the provisions of articles XI.189, XI.190, XI.191, XI.192, § § 1 and 3 and XI.192/1 are mandatory. "."
S. 8. in the same Code, it is inserted an article XI.218/1 as follows: "article XI.218/1. Libraries, educational institutions and museums accessible to the public, as well as archives, the custodians of the heritage film or sound institutions and public service broadcasting bodies established in the Member States of the Union European and of the European economic area, to achieve objectives related to their missions of public interest are allowed to use orphan works in their collections to one of the following ways and the conditions laid down in article XI.245/5 ((: a) provision to the public of the orphan work within the meaning of articles XI.205, § 1, paragraph 3, XI.209, § 1, paragraph 4 and XI.215, § 1, paragraph 1, d);
(b) reproduction, within the meaning of articles XI.205, § 1, paragraph 1, XI.209, § 1, paragraph 1 and XI.215, § 1, paragraph 1, b), scanning, placing at disposal, indexing, cataloguing, preservation and restoration purposes. "."
S. 9. article XI.219 of the Code, inserted by the law of April 19, 2014, is replaced by the following: 'article XI.219. the provisions of articles XI.217, XI.218 and XI.218/1, are mandatory. "."
S. 10. in book XI of the same Code, there shall be inserted a chapter 8/1: "Chapter 8/1. -Orphan works provisions".
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11. in Chapter 8/1, inserted by article 10 article be inserted a XI.245/1 as follows: "article XI.245/1. § 1. Means orphan work, a work or a phonogram, as defined in article XI.245/2, none of the beneficiaries has been identified, or, even if one or more of them has been identified, none of them could be located although a diligent search for rightholders have occurred and that this diligent search has been registered in accordance with articles XI.245/3 and XI.245/4.
§ 2. A work or a phonogram, as defined in article XI.245/2, with more of an entitlement, is also considered an orphan work if: 1 ° the successors have not all been identified or, if, although having been identified, not all could not be located after a diligent search has been made and registered in accordance with articles XI.245/3 and XI.245/4; and 2 2 ° ° right holders who have been identified and localized, with regard to the rights they hold authorized organizations and institutions referred to in articles XI.192/1 and XI.218/1, to perform acts of reproduction and making available to the public under articles XI.192/1 and XI.218/1, respectively. "."
S. 12. in the same chapter 8/1, inserted a section XI.245/2 as follows: "article XI.245/2.
§ 1. For the purposes of articles XI.192/1 and XI.218/1, can only be considered to be an orphan work: has) works published in the form of books, journals, newspapers, magazines or other writings that are part of the collections of libraries, educational institutions or museums accessible to the public as well as the collections of archives or institutions custodians of the heritage film or sound of;
(b) cinematographic or audiovisual works and Phonograms as part of the collections of libraries, teaching or museums accessible to the public as well as the collections of archives or institutions custodians of the heritage film or sound; and c) cinematographic or audiovisual works and Phonograms produced by organisms of PSB until 31 December 2002 included in their archives, which are protected by copyright or neighbouring and originally published in a State member of the Union rights European or, in the absence of publication, originally broadcast in a Member State of the Union European.
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2. If the works and Phonograms referred to the paragraph 1 have never summer published or broadcast, they are also considered for orphan works for the purposes of articles XI.192/1 and XI.218/1 if they have been made publicly available by the institutions or bodies referred to in articles XI.192/1 and XI.218/1 with the consent of the right holders, provided that it is reasonable to assume that the right holders would oppose not the uses referred to in articles XI.192/1 and XI.218/1.
§ 3. Works and performances which are incorporated or included, or which are an integral part of the works referred to in paragraphs 1 and 2 are also orphan works within the meaning of articles XI.192/1 and XI.218/1. "."
S. 13. in the same chapter 8/1, it is inserted an article XI.245/3 as follows: "article XI.245/3. § 1.
To determine if a work or a phonogram is an orphan work, the institutions or bodies referred to in articles XI.192/1 and XI.218/1 shall ensure that, with respect to each work or phonogram, a diligent search is carried out in good faith, in accordance with article XI.245/4.
The diligent search is conducted before the use of the work or phonogram.
Orphan work or phonogram orphan status is acquired from the moment the diligent search was made by the institutions and bodies referred to in articles XI.192/1 and XI.218/1 and that these last have recorded the work or phonogram as orphan.
§ 2. A work or a phonogram considered an orphan work in a Member State of the European Union or the European economic area is also considered an orphan work in Belgium. "."
S. 14. in the same chapter 8/1, it is inserted an article XI.245/4 as follows: "article XI.245/4. § 1.

A diligent search carried out by the institutions and bodies referred to in articles XI.192/1 and XI.218/1 to determine whether or not a work or a phonogram is an orphan work is done by consulting appropriate sources for the type of works or phonograms in question.
In consultation with organisations representing rightsholders and representative organizations of users and according to the conditions and modalities of consultation it fixed, the King determines the appropriate sources for each type of works or phonograms in question to perform diligent research.
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2. The diligent search is carried out in the Member State of the Union European or European economic area where takes place the first publication of the work or phonogram, or, in the absence of publication, in the Member State where takes place the first broadcasting, except in the case of cinematographic or audiovisual works whose producer has his headquarters or his habitual residence in a Member State of the Union European or space European economic in which case the diligent search is carried out in the Member State headquarters or habitual residence.
In the case referred to in article XI.245/2, paragraph 2, the diligent search is carried out in the Member State of the European Union or the European economic area where the institution or organization that has made the work or the phonogram available to the public with the authorization of the copyright is established.
If there is evidence suggesting that relevant information on right holders are available in other countries, the sources of information available in these other countries are also consulted.
§ 3. The institutions or bodies referred to in articles XI.192/1 and XI.218/1 retain the documentation of their due diligence research.
They save without delay, the following information in a database accessible to the public established and managed by the Office for harmonization in the internal market, in accordance with the Regulation (EU) No. 386/2012 unique online: a) the results of due diligence research they have done and which allowed to conclude that a work or a phonogram is considered to be an orphan work;
b) the name of the successors identified and localized of a work or of a phonogram with several right holders whose rights holders identified and localized gave permission to use, in accordance with article XI.245/1, § 2;
c) the institutions or agencies use of orphan works;
(d) any modification, in accordance with article XI.245/6, the orphan work status of works or phonograms used by institutions or bodies;
(e) the relevant contact details of the institution or body concerned).
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4. The competent national authority for orphan works is designated by the King, after consultation with the communities. "."
S. 15. in the same chapter 8/1, inserted a section XI.245/5 as follows: "article XI.245/5. § 1. The institutions and bodies referred to in articles XI.192/1 and XI.218/1 don't use an orphan work in accordance with XI.192/1 and XI.218/1 articles than for a purpose related to the performance of their tasks in the public interest, in particular the preservation, restoration of these phonograms or works in their collection and the provision of cultural and educational access to them.
Organizations and institutions can collect revenues through these uses, for the sole purpose of cover their costs related to digitisation and making available to the public of orphan works.
§ 2. The institutions and bodies referred to in articles XI.192/1 and XI.218/1 indicate the name of the authors identified and other right holders during any use of an orphan work. "."
S. 16. in the same chapter 8/1, it is inserted an article XI.245/6 worded as follows: "article XI.245/6. A person entitled has, at any time, the possibility to put an end to the status of a work as orphaned.
Paragraph 1 shall apply mutatis mutandis to the beneficiaries referred to in article XI.245/1, paragraph 2. "."
S. 17. in the same chapter 8/1, it is inserted an article XI.245/7 as follows: "article XI.245/7. When the authors, artists- performers, producers and broadcasters put an end to the status of orphan works, they are entitled to a remuneration for the use made by the institutions and bodies referred to in articles XI.192/1 and XI.218/1 pursuant to sections XI.192/1 and XI.218/1 of such works or phonograms.
The remuneration is paid by the institutions and bodies referred to in articles XI.192/1 and XI.218/1.
The King lays down the procedures for the calculation of compensation for the use of orphan works, the modalities of perception, distribution and control of remuneration, as well as the time where it's due.
The King may, according to the terms and conditions set by it, load one or more corporations which, alone or together, are representative of the whole of the rights management societies, to ensure orphan collection and distribution of remuneration for the use of works.
The King may also determine the allocation of earnings key, on the one hand, between categories of rights-holders and, on the other hand, between categories of works. In this case, the key is mandatory.
The part of the remuneration referred to in paragraph first, to which the authors and performers or performers are entitled, is not transferable. "."
CHAPTER 3. -Provisions transitional art.
18. this Act applies to works and performances referred to in article XI.245/2 protected by law on 29 October 2014 or after and not fallen into the public domain.
S. 19. this Act shall not prejudice rights acquired under the Act or by virtue of legal acts, or acts of exploitation made prior to its entry into force.
Promulgate this Act, order that it be under the seal of the State and published by le Moniteur.
Given to Brussels, July 20, 2015.
PHILIPPE by the King: the Minister of the economy, K. PEETERS. the Minister of the Digital Agenda, A. DE CROO sealed with the seal of the State: the Minister of Justice, K. GARG _ Note (1) House of representatives: (www.lachambre.be) Documents: 54-1151 (2014/2015) full report: 8 and July 9, 2015.