Orphan Works are works which are still under copyright protection but whose creators or location of those creators are unknown. In order to use such works a prospective user must invest considerable resources in discovering the copyright owner, which in most cases is very hard or even impossible. The author could have never been publically known, the work might be published anonymously, or never published at all, or information available at some point of time could have been lost forever.
In such a case the exhausting research can end with no positive result and the potential user of the work might either be faced with the liability risk (when using the work without a respective authorisation) or not use the work at all. The latter could have negative consequences since it would disturb the “free movement of knowledge and innovation”. Since the proportion of orphan works in the possession of Europe’ s cultural institutions is very substantial (e.g. the British Library estimates that 40 per cent of its copyrighted collections – 150 million works in total - are orphan works), the Directive on certain permitted uses of orphan works (hereinafter – the Orphan Works’ Directive) was adopted in 2012 by the European Parliament and the Council.
The Orphan Works’ Directive covers
- works published in the form of books, journals, newspapers, magazines or other writings
- cinematographic or audiovisual works
- works embedded or incorporated in other works or phonograms (e.g. pictures in a book)
The rules of the Orphan Works’ Directive apply to
- publicly accessible libraries,
- educational establishments,
- film or audio heritage institutions
- public-service broadcasting organisations
The Orphan Works’ Directive provides for unified rules governing the use of orphan works (the description below is based on the information from “Orphan works – Frequently asked questions”, available at: http://europa.eu/rapid/press-release_MEMO-12-743_en.htm?locale=en ), including:
- the rules on how to identify orphan works. It states that a cultural organisation that wishes to digitise and make available the work has to conduct a diligent search to find its copyright holder(s). In this search, it should rely on sources such as databases and registries, the unexhaustive list of which is mentioned in the Annex to the Directive.
- the rules on recognition of the work as an orphan work. It states that if a diligent search does not yield the identity or location of the copyright holder(s), the work shall be recognised as an orphan work. This status shall then, by virtue of mutual recognition, be valid across the European Union (once recognized as an orphan work in one EU country, it will be recognized as such throughout the EU)
- the establishment of a single European registry of all recognised orphan works. The registry is to be run by OHIM, the European Trade Mark Office based in Alicante.
- the rules for the uses that can be made of the orphan works. The beneficiary organisations will be entitled to use orphan works to achieve aims related to their public interest mission. They will be allowed to conclude public-private partnerships with commercial operators and to generate revenues from the use of orphan works to cover the digitisation costs.
- a mechanism to allow a reappearing right holder to assert his copyright and thereby end the orphan work status.
The text of the Orphan Works’ Directive is available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2012:299:0005:0012:EN:PDF
Texts in other languages available at: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32012L0028
NB! Guidelines for recognition of the orphan works (in Latvian) were published by the Latvian National Library in 2016 (in co-authorship with Jurģis Īvāns), available here: guidelines-for-recognition-of-the-orphan-works.pdf
Diploma in Art Law
Specially for artlaw.online
 Orphan works – Frequently asked questions, available at http://europa.eu/rapid/press-release_MEMO-12-743_en.htm?locale=en, last visited 16 June 2017