The IPKat: Have EU orphans found a caring home?

As promptly reported yesterday by the IPKat, the Orphan Works Directive has just been published in Official Journal of the European Union, thus becoming Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works. This Kat agrees with Jeremy that there’s plenty of material for preliminary references to the Court of Justice of the European Union, as the various provisions in the Directive look, to say the least, open to various interpretations. As IPKat readers will remember, the reasons for adopting such a Directive were clarified by the Commission last year, both in its blueprint on IP rights and the Impact Assessment accompanying the proposal. In the first document, it was pointed out that: 'Facilitating the preservation and dissemination of Europe’s rich cultural and intellectual heritage and encouraging the creation of European digital libraries [also through the ARROW project] is key for the development of the knowledge economy. Innovative licensing solutions [facilitating licensing across the EU seems now Commission's No 1 priority: see here] are needed to promote the seamless sharing of knowledge and culture that allow academic institution, businesses [such as Google: see further below], researchers and private individuals to lawfully use copyright-protected materials while compensating authors, publishers, and other creators for the use of their works.' What the Commission had in mind became slightly clearer in the Impact Assessment accompanying the proposed directive. There the Commission made no mystery of the fact that, besides enhancing European Digital Library projects and the broader objectives relating to a Digital Agenda for Europe and an EU digital single market, by adopting such a Directive Europe could have avoided the situation resulting from the US Google Books Settlement [as far as this Kat knows, unlike Europe, in the US no orphan works legislation is currently being discussed], in particular the fact that in its original formulation orphan works were to be automatically included in the scope of the Google Books Settlement [cf the different features of the settlement achieved a few months ago by Google and relevant French publishers here – for the latest developments on the US side of this saga, see IPKat report here]. Furthermore, as was pointed out in the press release accompanying the informal deal concluded by MEPs and the Council at the beginning of the summer, in the US 'a Google project to digitise and share all kinds of books, including orphan works, was blocked  on the grounds that the orphan works question should be settled by legislation not private agreements.'  As reported by the IPKat (here, here, here ...), following the publication of the proposed directive, this has been subject to a series of amendments, in particular in relation to the following: right to compensation should the copyright owner show up; possibility to generate some revenue from the use of an orphan work; notion of diligent search; how to end the orphan work status.  Now that the final text of the Directive has been published, this Kat has read its recitals and provisions and has to confess that she has found some of these as including more intrigues and mysteries than new 007 film Skyfall. In particular ..."