The European Commission (EC) and national governments are conscious that knowledge is one of the most valuable assets. To this end they are subsidizing Cultural Heritage Institutions (CHIs) to archive past works and digitalize them for online public access.

Such an activity necessarily faces copyright barriers. Digitization of a work is equivalent to reproduction while provision of online public access is equivalent to a communication to the public – therefore acts which a right holder of a copyright has a right to prevent.

Directive 2012/28/EU on certain permitted uses of orphan works has been promulgated in order to deal with copyright barriers which CHIs face in the course of their duties.[1] Member States have to transpose it by 29^th October 2014.

1.      Clearance Procedure

Use of a copyrighted work requires obtainment of prior permission from the right holder(s). Such consent is obtained via either of the following procedures;

1. Obtaining consent through collecting societies
2. Obtaining consent by searching and asking each and every copyright owner

If neither procedure indicates the copyright owner, there is a barrier to the legitimate reproduction of the work as no prior consent may be obtained. Such barrier exists irrespective of the ends of the reproduced work; therefore even parties in good-faith are not able to make us of such work.

Directive 2012/28/EU on certain permitted uses of orphan works provides CHIs with a procedure granting a limited exemption discharging them from such barrier.[2]

1.1.      The Solution provided by Directive 2012/28/EU on certain permitted uses of orphan works

Unless CHIs are given a solution to the ordinary clearance procedure, the age and character of the works being digitized has proved to be an insurmountable barrier for the fulfillment of their duty.

The solution provided by Directive 2012/28/EU consists in the waiver of the requirement of prior consent of the right holder(s) for legitimate use. This waiver is only available once a diligent search has been done and the result is that the particular work is an orphan.

The exemption available to CHIs is only operative within the parameter of their public-interest mission.[3]

2.      What does a diligent search consist of?

A diligent search consists of a search which CHIs perform in good-faith by consulting the appropriate sources for the category of works in the subject-matter in question.

The diligent search is carried out in the Member State of first publication or first broadcast while n case of audiovisual works, it is carried out in the habitual member state of the producer.[4]

If there is evidence to suggest that relevant information on right holder(s) will be found in another country, sources of such country have to be consulted as well.[5]

Diligent searches will be recorded and made available in a publicly accessible online database.[6] The diligent search has to be carried out prior to any use of such work.[7]

2.1.      What is an orphan work?

A work is considered an orphan if none of the right holders of that work are identified or if identified, not located, despite a diligent search carried out.[8]

Once a work has been given the status of orphan in one Member State, it is considered such in all Member States.[9]

Note where there is more than one right holder, and not all have been located / identified after a diligent search, such would not qualify for orphan status. Permission of the right holder(s) which have been found shall suffice.[10]

In case a work is mistakenly deemed an orphan, fair compensation will be provided to the right holder(s) and the status shall be amended.[11]      

3.      CHIs v. Other entities

Natural and legal persons may never make legitimate use of any work without the required prior authorisation (unless exempted under any other law).

CHIs too may never make such use, except within the parameters of the exemption they are granted in order to fulfil their public-interest mission and after a diligent search has been carried out which classified a work as being an orphan.