Orphan works: have the British ERRed?

"The Orphan Works Provisions of the ERR Act: Are They Compatible with UK and EU Laws?" is the title of 1709 Blogger Eleonora Rosati's most recent article. A forthcoming publication in Sweet & Maxwell's monthly European Intellectual Property Review, this piece is already available online via SSRN: you can access it here. According to the abstract:

On 25 April 2013 the Enterprise and Regulatory Reform Act 2013 (ERR Act) received Royal Assent. The ERR Act contains a number of heterogeneous copyright provisions, including one – Section 77(3) – which confers a new power upon the Secretary of State to provide by regulations for the grant of licences in respect of orphan works.

This article analyses the legislative framework for orphan works as resulting from the ERR Act and compares it with the recently adopted Directive 2012/28/EU (the Orphan Works Directive, which the UK must implement – along with all other EU Member States – by 29 October 2014). Although the actual shape of UK orphan works legislation has yet to be fully defined – either under the ERR Act, or the Orphan Works Directive, – this contribution questions whether in principle the ERR Act is compatible with the Copyright and Designs Patents Act 1988, Directive 2001/29/EC (the Information Society or InfoSoc Directive), the Charter of Fundamental Rights of the European Union, and the Orphan Works Directive.

This requires consideration of the nature of the regimes embodied in the ERR Act (which purports to adopt a ‘licensing’ approach) and the Orphan Works Directive (which creates an exception), as well as the more general relationship between EU and national laws (in particular the principle of supremacy of EU law and the doctrine of EU pre-emption), so to establish whether, by adopting its orphan works provision in the ERR Act, the UK acted in breach of its obligations under EU law. In any case, it is submitted that the UK has rendered impossible any meaningful implementation of the Directive into its national law. As a matter of practice, there will be no significant advantages to claiming the benefit of the orphan works provisions under the Directive, rather than the parallel provisions under the ERR Act, at least for works that will be exploited within the UK territory.

Is Eleonora right? Do you agree with her analysis? Do let her know what you think!