Orphan Works: What To Do

What copyright law provide when the author cannot be found
 

By Gabriele Dalle Luche and Paolo Garfagnini 

Orphan works represent a specific legal category referring to works that are still protected by copyright, but for which the author or rights holders are unknown or cannot be located, despite a diligent search.
In the European Union, this subject is regulated by Directive 2012/28/EU, aimed at facilitating the digitization and dissemination of orphan works, while respecting copyright laws. This mainly benefits libraries, museums, archives, and educational institutions, promoting their preservation and public access.
Italy implemented the Directive through Legislative Decree No. 163/2014. In summary, it provides for: - diligent search: in order to classify a work as orphaned, libraries, museums, archives, and educational institutions must conduct a thorough and accurate search to identify or locate the author or rights holders (according to the procedures and sources listed in Article 69-quater of Law No. 633/1941 and subsequent amendments); - permitted use: cultural institutions may use orphan works exclusively for non-commercial purposes (digitization, preservation, restoration, and making the work available to the public); - reappearance of the author: if the rights holder later comes forward, he or she may claim the rights and is entitled to fair compensation for the prior use of the work.

All EU countries have implemented the directive with national laws similar to Italy’s. The results of these diligent searches must be registered in the European database managed by EUIPO (European Union Intellectual Property Office).
The United States has made several attempts to adopt similar legislation (such as the Orphan Works Act), but these attempts have never reached final approval. The issue is mainly handled under the doctrine of Fair Use and through case law that has developed over time, with a case-by-case approach.
Despite the regulations in place, unfortunately, much of this material remains unknown and unused, a treasure trove made up of countless artwork. The real issue lies in the implementation of the law; in practice, various sites and registries that should be consulted are either non-functional or not updated (a notable example: the internet link “opereorfane.beniculturali.it” provided by the Ministry for verification does not work!).

Info: www.themistudilegali.it