Back in June 2012 the EU Parliament and Council agreed on the draft of the legislation in “orphan works”. As a result, on October 4th 2012 the EU Council adopted the Directive 2012/28/UE on certain permitted used of orphan works.

The new rules, according to the Press Service of the EU Parliament,

“would protect institutions using orphan works from future copyright infringement claims, and thus avoid court cases like that in the US, in which a Google project to digitise and share all kinds of books, including orphan works, was blocked on the grounds that the orphan works question should be settled by legislation, not private agreements”.

This new policy allows libraries, schools, archives, film heritage institutions, public broadcasters and other organizations acting in the public interest and established in the EU, to make available those works for which no author is identified or it is not located.

To prove the “orphan status”, the cited organisms would be required to carry out a prior diligent search in the Member State where the wok was first published.

Works granted “orphan status” would be then made public, through digitisation and only for non-profit purposes.

This “orphan status” shall be valid in all the EU on the basis of the “mutual recognition” and would apply to any audiovisual or printed material in any EU country.

The right holder should be entitled to put an end to the orphan status of a work at any time and claim an appropriate compensation for the use made out of it but a provision exist to ensure that compensation payments remain small.

This Directive is the core of the Commission's strategy to create an enabling framework for the use of intellectual property and for this strategy, the creation of European digital libraries that preserve and disseminate Europe's rich cultural and intellectual heritage is key.

The Member States have now two years to transpose the Directive into national Law and it will be interesting learning how the transposition is conducted and what possible controversies may arise when (and if) orphan work litigation begins.