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20 JULY 2015. - Act transposing Directive 2012/28/EU of the European Parliament and Council of 25 October 2012 on certain authorized uses of orphaned works (1)

PHILIPPE, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER 1^er. - General provision
Article 1^er. This Act regulates a matter referred to in Article 74 of the Constitution.
CHAPTER 2. - Orphaned works
Art. 2. This chapter transposes Directive 2012/28/EU of the European Parliament and Council of 25 October 2012 on certain authorized uses of orphaned works.
Art. 3. Article I.13 of the Economic Law Code, inserted by the Law of 19 April 2014, is supplemented by an 8°, which reads as follows:
"8° Office of Harmonization in the Internal Market: the Office of 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 Brand".
Art. 4. Section XI.164 of the same Code, inserted by the Act of 19 April 2014, is replaced by the following:
"Art. XI.164. This title transposes the following guidelines:
1° Commission Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules of copyright and related copyright applicable to satellite broadcasting and cable broadcasting;
2° Directive 96/9/EC of the European Parliament and 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 harmonization of certain aspects of copyright and neighbouring rights in the information society;
4° Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 on the right of action for the benefit of the author of an original work of art;
5° Directive 2006/115/EC of the European Parliament and the Council of 12 December 2006 on the right to leasing and lending and 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 duration of protection of copyright and certain neighbouring rights.
7° Directive 2012/28/EU of the European Parliament and the Council of 25 October 2012 on certain authorized uses of orphaned works. ".
Art. 5. Article XI.168, paragraph 1^er, of the same Code, inserted by the law of 19 April 2014, the words "and without prejudice to Article XI.245/1, § 2" are inserted between the words "When copyright is indivis" and the words "the exercise of this right is regulated by the conventions".
Art. 6. In the same Code, an article XI.192/1 is inserted as follows:
"Art. XI.192/1. Libraries, educational institutions and museums accessible to the public, as well as archives, depositary institutions of cinematographic or sound heritage and public service broadcasting organizations, established in the Member States of the European Union and the European Economic Area, with a view to achieving the objectives related to their missions of public interest, are authorized to use the orphaned works contained in their collections in one of the following ways and conditions XI/5
(a) provision of orphan work to the public within the meaning of Article XI.165, § 1^erParagraph 4;
(b) reproduction within the meaning of Article XI.165, § 1^erParagraph 1^erfor the purposes of digitization, availability, indexation, cataloguing, preservation or restoration.".
Art. 7. Section XI.193 of the same Code, inserted by the Act of 19 April 2014, is replaced by the following:
"Art. XI.193. The provisions of articles XI.189, XI.190, XI.191, XI.192, § 1^er and 3 and XI.192/1 are imperative. ".
Art. 8. In the same Code, an article XI.218/1 is inserted as follows:
"Art. XI.218/1. Libraries, educational institutions and museums accessible to the public, as well as archives, depositary institutions of cinematographic or sound heritage and public service broadcasting organizations, established in the Member States of the European Union and the European Economic Area, with a view to achieving the objectives related to their missions of public interest are allowed to use the orphaned works contained in their collections in one of the following ways and conditions set out in article XI to
(a) provision of orphan work to the public within the meaning of articles XI.205, § 1^erparagraph 3, XI.209, § 1^erparagraphs 4 and XI.215, § 1^erParagraph 1^erd);
(b) reproduction, within the meaning of articles XI.205, § 1^erParagraph 1^er, XI.209, § 1^erParagraph 1^er and XI.215, § 1^erParagraph 1^er, b), for the purposes of digitization, availability, indexation, cataloguing, preservation or restoration.".
Art. 9. Section XI.219 of the same Code, inserted by the Act of 19 April 2014, is replaced by the following:
"Art. XI.219. The provisions of articles XI.217, XI.218 and XI.218/1 are imperative. ".
Art. 10. In book XI of the same Code, a chapter 8/1, entitled:
"Chapter 8/1. - Provisions relating to orphan works".
Art. 11. In Chapter 8/1, inserted by Article 10, an article XI.245/1 is inserted as follows:
"Art. XI.245/1. § 1^er. An orphaned work, a work or a phonogram, as defined in Article XI.245/2, of which none of the entitled persons has been identified, or, even if one or more of them has been identified, none of them has been able to be located although a diligent search of the right persons has been carried out and this diligent search has been recorded in accordance with Articles XI.245/3.
§ 2. A work or phonogram, as defined in Article XI.245/2, with more than one entitled person, is also considered an orphan work if:
1° all persons entitled were not identified or, although they were identified, were not all located after a diligent search was conducted and recorded in accordance with Articles XI.245/3 and XI.245/4; and
2° the legal persons who have been identified and located have, with respect to the rights they hold, authorized the institutions and bodies referred to in Articles XI.192/1 and XI.218/1 to perform the acts of reproduction and of making available to the public under Articles XI.192/1 and XI.218/1 respectively.
Art. 12. In the same chapter 8/1, an article XI.245/2 is inserted as follows:
"Art. XI.245/2. § 1^er. For the purposes of articles XI.192/1 and XI.218/1, may only be considered an orphaned work:
(a) 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 collections of archives or depository institutions of the film or sound heritage;
(b) cinematographic or audiovisual works and phonograms forming part of the collections of libraries, educational institutions or museums accessible to the public, as well as collections of archives or institutions depository of film or sound heritage; and
(c) cinematographic or audiovisual works and phonograms produced by public service broadcasting organizations until 31 December 2002 inclusive and contained in their archives, which are protected by copyright or neighbouring rights and which are initially published in a Member State of the European Union or, in the absence of publication, initially broadcast in a Member State of the European Union.
§ 2. If the works and phonograms referred to in paragraph 1^er have never been published or broadcast, they are also considered to be orphaned works for the purposes of Articles XI.192/1 and XI.218/1 if made publicly accessible by the institutions or organizations referred to in Articles XI.192/1 and XI.218/1 with the agreement of the entitled persons, provided that it is reasonable to assume that the entitled persons would not oppose the uses referred to in Articles XI/118 and XI.218/1.
§ 3. Works and benefits that are incorporated, or included, or are part of the works referred to in paragraphs 1^er and 2 are also orphaned works within the meaning of articles XI.192/1 and XI.218/1.".
Art. 13. In the same chapter 8/1, an article XI.245/3 was inserted as follows:
"Art. XI.245/3. § 1^er. In order to determine whether a work or a phonogram is an orphan work, the institutions or organizations referred to in Articles XI.192/1 and XI.218/1 shall ensure that, in respect of each work or phonogram, a diligent search is carried out in good faith in accordance with Article XI.245/4.
The diligent search is carried out before the use of the work or the phonogram.
The status of an orphaned work or an orphaned phonogram is achieved from the time the diligent research was carried out by the institutions and organizations referred to in Articles XI.192/1 and XI.218/1 and that the latter recorded the work or the phonogram as an 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. ".
Art. 14. In the same chapter 8/1, an article XI.245/4 is inserted as follows:
"Art. XI.245/4. § 1^er. A diligent search by the institutions and organizations referred to in Articles XI.192/1 and XI.218/1 to determine whether a work or a phonogram is an orphan work or not is done by consulting the appropriate sources for the type of works or phonograms in question.
In consultation with the representative organizations of the right holders and the representative organizations of the users and in accordance with the terms and conditions of consultation it sets, the King determines the appropriate sources for each type of work or phonograms in question in order to carry out the diligent research.
§ 2. The diligent search is carried out in the Member State of the European Union or of the European Economic Area where the first publication of the work or the phonogram takes place or, in the absence of publication, in the Member State where the first broadcasting takes place, except in the case of cinematographic or audiovisual works of which the producer has his seat or habitual residence in a Member State of the European Union or of the case
In the case referred to in Article XI.245/2, paragraph 2, the diligent search shall be carried out in the Member State of the European Union or the European Economic Area where the institution or body that has made the work or the phonogram accessible to the public with the authorization of the entitled person.
While there is evidence suggesting that relevant information on right-holders is available in other countries, sources of information available in other countries are also consulted.
§ 3. The institutions or organizations referred to in articles XI.192/1 and XI.218/1 shall keep the documentation of their diligent research.
They immediately record the following information in a single online database accessible to the public established and managed by the Office of Harmonization in the Internal Market, in accordance with Regulation (EU) No. 386/2012:
(a) the results of the diligent research carried out by them and which led to the conclusion that a work or a phonogram is considered an orphan work;
(b) the name of the right-holders identified and located in a work or phonogram with a number of right-holders, whose right-holders identified and located have given an authorization for use, in accordance with Article XI.245/1, § 2;
(c) the use of orphaned works by institutions or organizations;
(d) any modification, in accordance with Article XI.245/6, of the orphaned status of works or phonograms used by institutions or organizations;
e) the relevant coordinates of the institution or agency concerned.
§ 4. The competent national authority for orphaned works is designated by the King, after consultation with the Communities. ".
Art. 15. In the same chapter 8/1, an article XI.245/5 is inserted as follows:
"Art. XI.245/5. § 1^er. The institutions and organizations referred to in Articles XI.192/1 and XI.218/1 shall not use an orphaned work in accordance with Articles XI.192/1 and XI.218/1 except for the purpose of carrying out their missions of public interest, in particular the preservation, restoration of works or phonograms present in their collection and the provision of cultural and educational access to them.
Institutions and organizations may collect revenue in these uses, with the exclusive aim of covering their costs related to digitization and the provision of orphaned works to the public.
§ 2. The institutions and bodies referred to in Articles XI.192/1 and XI.218/1 shall indicate the names of the authors identified and other persons entitled in any use of an orphan work. ".
Art. 16. In the same chapter 8/1, an article XI.245/6 is inserted as follows:
"Art. XI.245/6. A rightful person has, at any time, the possibility of ending the status of an orphaned work.
Paragraph 1^er applies mutatis mutandis to eligible persons referred to in Article XI.245/1, paragraph 2.".
Art. 17. In the same chapter 8/1, an article XI.245/7 is inserted as follows:
"Art. XI.245/7. When the authors, performers or performers, producers and broadcasting organizations cease the status of an orphaned work, they are entitled to compensation for the use that the institutions and organizations referred to in Articles XI.192/1 and XI.218/1 have done in accordance with Articles XI.192/1 and XI.218/1 of such works or phonograms.
Compensation shall be paid by the institutions and organizations referred to in articles XI.192/1 and XI.218/1.
The King sets out the methods for calculating remuneration for the use of orphaned works, the modalities for the collection, distribution and control of remuneration, and the time it is due.
The King may, under the conditions and terms and conditions that He sets, charge one or more companies that, alone or together, are representative of all the rights management societies, ensure the perception and distribution of remuneration for the use of orphaned works.
The King may also determine the key to the distribution of remuneration, on the one hand, between the categories of entitled persons and, on the other, between the categories of works. In this case, the distribution key is mandatory.
The share of remuneration, referred to in paragraph 1, to which the authors and performers or performers are entitled, is inceivable. ".
CHAPTER 3. - Transitional provisions
Art. 18. This Act applies to works and benefits under section XI.245/2 protected by law on October 29, 2014, or after and not in the public domain.
Art. 19. This Act does not prejudice the rights acquired under the Act or the effect of legal acts or the acts of exploitation performed prior to its entry into force.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels, 20 July 2015.
PHILIPPE
By the King:
Minister of Economy,
K. PEETERS
Minister of Digital Agenda,
A. DE CROO
Seal of the state seal:
Minister of Justice,
K. GEENS
____
Note
(1) House of Representatives:
(www.lachambre.be)
Documents: 54-1151 (2014/2015)
Full report: 8-9 July 2015.