THE ORPHAN WORKS DIRECTIVE

Abstract

This chapter analyses Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works. This Directive is the result of a legislative process that addressed the legal situation where authors or rights holders of copyright protected works cannot be identified or located. It does this by establishing the conditions under which the orphan work status can be declared throughout the EU region, and under which such works can legitimately be reproduced and made available online. Thus, to a certain extent, the Directive sets out to harmonise the rules on digitisation and online display of ‘orphan works’ by specific institutions. The zeitgeist of the twenty-first century is not only to celebrate humanity’s cultural heritage, but also to preserve and maintain it for future generations, whilst ensuring its current accessibility to the public. This task is vested in libraries, museums, archives and other memory institutions - collectively known as cultural heritage institutions. Cultural heritage institutions (CHIs) involved in research, archival, data mining, preservation and access activities have complained that one of the greatest impediments to their digital activities involves ‘orphan works’ and/or ‘out-of-commerce’ works. This is due to the fact that the copyright status of works in such institutions (including printed literature, visual works, photographs, recordings, films and other ephemera which reflect humanity’s culture and history) is often unclear because caretakers cannot identify or locate the copyright owner.