Orphan Works are all those works such as books, films, newspaper articles and other creative material that are protected by copyright, but whose owner cannot be found or contacted to obtain permission to use them.
The EU Directive on Orphan Works (Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012) The European Union (Certain permitted uses of Orphan Works) Regulations 2014.
Directive 2012/28/EU sets out common rules for the use of orphan works in the nature of books, journals, or other written works as well as cinematographic or audiovisual works or sound recordings and embedded visual art (it excludes standalone artistic works such as photographs and illustrations) by cultural organisations for the purpose of digitising those works for non-commercial purposes without infringing copyright.
The digitisation or dissemination of orphan works cannot take place without permission from the author or his/her heirs. Such prohibition also applies to cultural institutions and this can prevent wider public access to a considerable part of our cultural heritage.
Under the Directive, such works which have been identified as orphan after a diligent search on their authorship may be used by public institutions.
The Directive was transposed into Irish law by Statutory Instrument 490/2014 – European Union (Certain permitted uses of Orphan Works) Regulations 2014.
The Orphan Works Database
The Orphan Works Database provides information on orphan works contained in the collections of publicly accessible libraries, educational establishments and museums, as well as archives, film or audio heritage institutions and public-service broadcasting organisations established in the Member States which have been recorded in the database by these organisations having been identified as “orphan works” following a diligent search.
The database enables beneficiary organisations – such as those mentioned above – that want to make use of orphan works in digitisation projects to have easy access to relevant information about them. The database covers information about a wide range of works first published or broadcast in the EU Member States:
- Works in the print sector, such as books, journals, newspapers, magazines or other writings;
- Cinematographic or audiovisual works and phonograms;
- Unpublished works under certain conditions;
- Works embedded or incorporated in other works or phonograms, e.g. pictures, photographs;
- Partial orphan works, i.e. those for which some rightholders have been identified and located and have given permission to use the work in relation to rights they hold.
The database allows rightholders to search for orphan works, obtain contact information of the organisations using them, and put an end to their orphan work status. It also provides beneficiary organisations and competent national authorities with reports and statistical data on orphan works that have been recorded in the database.
Carrying out a diligent Search
Before commencing the digitisation of a work, cultural organisations such as libraries, heritage institutions, museums archives and public service organisations must first carry out a diligent search to establish ownership of the work(s)¹. The Orphan Works Database should be consulted when carrying out a diligent search. The cultural organisation should then consult any sources relevant to the category of work and in particular those which are specified in the Schedule to Statutory Instrument 490/2014 e.g. in the case of a book, library catalogues, publisher and authors associations, ISBN databases etc should be consulted. While the diligent search will primarily be focused on the State where the work first became available to the public, it may be necessary to also research sources in other States. If the search does not result in the identification or location of the rightholder(s), the organisation can then notify the outcome of the search to the competent authority, which in Ireland’s case is the Controller of Patents.
Procedure for recording an orphan work in the database of orphan works.
Following the completion of a diligent search, any organisation wishing to register an Orphan Work in the Orphan Works Database must first apply online to EUIPO/orphan works to be registered as a “Beneficiary Organisation”. This online application to EUIPO is notified to the Competent National Authority designated in each Member State who then completes the forwarding of the application to EUIPO; in Ireland that authority is the Controller of Patents, Designs and Trade marks.
Once registered, the Beneficiary Organisation may enter information about the work as well as their contact details in the Orphan Works Database².
Following receipt of this information, the EUIPO will notify the Controller that a Beneficiary Organisation has entered information regarding an orphan work and that such information is pending and requires to be forwarded by the Controller to the Orphan Works Database.
The Beneficiary Organisation should, at the same time provide the Controller with information about the work that it desires to have recorded in the database together with information on the extent and outcome of the diligent search which has been carried out. The form for Beneficiary Organisations for recording details of the work together with the results of the diligent search may be submitted to the Controller at the following email address email@example.com
On receipt of a notification from EUIPO and following receipt of the form containing details of the work and the diligent search, the Controller will arrange for the completion of the recording of the information entered by the Beneficiary Organisation. Only after this recording process has been completed does the information become accessible in the Database.
¹ In accordance with Regulation 5 of Statutory Instrument 490/2014
² Information, as foreseen in Section 5 of Article 3 of Directive 2012/28/EU