EU Directive on Orphan Works Enters into Force

The European Union Directive on certain permitted uses of orphan works has entered into force on 28 October 2012 following its publication on EU’s Official Journal.

The EU Directive, as a key action of the Digital Agenda for Europe, aims at setting a legal framework for the single market to address the issue of orphan works - the use of which is inhibited because they are still protected by copyright but their rightholders cannot be identified or located for permission of use.
 
The Directive allows, upon certain conditions, the massive orphan works stored in libraries, educational establishments, museums, archives, film or audio heritage institutions, and public service broadcasters of the EU to be digitised and made available to the public.
 
The categories of works applicable to the Directive include:
  • printed works
  • cinematographic and audio-visual works
  • phonograms
  • works embedded or incorporated in other works or phonograms (e.g. pictures in a book)
  • unpublished works (such as letters and manuscripts) under certain conditions.
For establishing orphan work status, the use of the work must be related to public-interest missions, such as for promoting learning and disseminating culture. Besides, a prior diligent search in good faith must be carried out with respect to the work by designated organisations in the country where the material was first published or broadcast.
 
A work, once considered an orphan work in one EU member state, shall be recognised throughout the whole EU, unless its rightholder subsequently reappears to claim ownership of the work and stop it from being digitised.
 
In this case, the rightholder would be entitled to claim compensation for its use. As to the level and conditions of compensation, individual EU member states are free to determine, by reference to the Union and national laws and taking into account the non profit-making nature of orphan works.
 
A transition period of two years is provided in the Directive. This means that the EU member states may bring into force the laws, regulations and administrative provisions necessary to implement the Directive into their own national frameworks by latest of 29 October 2014.