Last month, Ireland joined the European wide movement to digitise cultural material when the European Union (Certain permitted uses of Orphan Works) Regulations 2014 came into effect. The new Regulations mean that an array of previously unusable copyright works can now be digitised and displayed online creating huge social benefit.

Harry Potter’s parents met their fate at the hands of an evil wizard and Paddington Bear’s in an earthquake, making each of them orphans. Certain copyright works whose owner cannot be identified or located are also considered orphans.

There are thought to be millions of orphan works in libraries, museums, archives and other institutions across Europe. As the owners of orphan works can not be located or identified, permissions to use these works can not be obtained. The result? A substantial part of European heritage remained off limits to cultural organisations and the wider public. Directive 2012/28/EU of the European Parliament of 25 October 2012 on certain permitted uses of orphan works, which came into force on 28 October 2012 and which Member States were required to implement by 29 October 2014, changes that.

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Implementation of Orphan Works Directive

The European Union (Certain permitted uses of Orphan Works) Regulations 2014 (the "Regulations") giving effect to the Directive in Ireland came into operation on 29 October 2014. The Regulations create an additional exception to copyright for a “relevant body” which is a publicly accessible library, an educational establishment, a museum, an archive, a film or audio heritage institution or a public service broadcaster.

Under the Regulations, a relevant body can: 

  • make available to the public; and
  • reproduce for the purpose of digitisation, making available, indexing, cataloguing, preservation or restoration;

books, journals and other written works, cinematographic or audiovisual works or sound recordings that are considered orphan works without infringing copyright.

Diligent Search

In order to establish whether a work is in fact an orphan work, prior to its use, the relevant body must carry out a diligent search of: 

  • the Office for Harmonisation in the Internal Market (“OHIM”) database; and
  • sources of information relevant to the work, including sources available in other countries where evidence suggests that right holder’s information may be found there.

In Ireland, the results of the diligent search leading to the conclusion that the work is considered an orphan work must be provided to the Controller of Patents who will then forward the information to OHIM for inclusion in the publically accessible EU-wide data base which went live on 27 October 2014.

Once an Orphan, Always an Orphan?

Once a work is considered an orphan work in one country, it is recognised as orphan in every Member State making it possible for cultural organisations to digitise and make the works available throughout the EU. This increases the chance that its owner will recognise it as one of their works in which case a right holder can claim their rights and end the orphan work status.

New Treasures

There is quite a distance to go before all orphan works are digitised and available to the public but the common rules on the digitisation and online display of orphan works is a huge first step in unlocking some of Ireland and Europe’s great cultural treasures.