The Legislative Decree November 10th 2014 n. 163, implementing the European Directive 2012/28/UE, in force from November 25th 2014, has amended the Italian copyright law, L. April 22nd 1941, n. 633, introducing new articles from 69 bis to 69 septies, including the discipline of certain permitted uses of orphan works.
First of all, the above-mentioned decree, by introducing the new art. 69bis, identifies the subjects legitimated to exploiting the orphan works and the permitted uses, providing that only publicly accessible libraries, educational establishments and museums, as well as by archives, film or audio heritage institutions and public-service broadcasting organisations have the right to use such works, contained in their collections, in the following ways:
- by acts of reproduction of the orphan work for the purposes of digitisation, indexing, cataloguing, preservation or restoration;
- by making the orphan work available to the public in such a way that members of the public may access them from a place and at a time individually chosen by them.
The above-mentioned uses apply exclusively to certain protected works and, in particular, to:
- works published in the form of books, journals, newspapers, magazines or other writings contained in the collections of publicly accessible libraries, educational establishments or museums, as well as in the collections of archives or of film or audio heritage institutions;
- cinematographic or audiovisual works and phonograms contained in the collections of publicly accessible libraries, educational establishments or museums, as well as in the collections of archives or of film or audio heritage institutions;
- cinematographic or audiovisual works and phonograms produced by public-service broadcasting organisations up to and including 31 December 2002 and contained in their archives;
- works and phonograms referred to in previous points (i), (ii) and (iii), deposited with the organisations listed in art. 69 bis before 29 October 2014, which have never been published or broadcasted but which have been made publicly accessible by the above-mentioned organisations with the consent of the right holders, provided that it is reasonable to assume that the right holders would not oppose the uses.
- works and other protected subject-matter that are embedded or incorporated in, or constitute an integral part of, the works or phonograms referred to in points (i), (ii) and (iii).
According to the above-mentioned decree, a work or a phonogram shall be considered an orphan work if none of the right holders in that work or phonogram is identified or, even if one or more of them is identified, none is located despite a diligent search for the right holders having been carried out and recorded in accordance with such decree, with the exclusion of the works in commerce.
Such search shall be carried out by the organisations, listed in art. 69 bis, which have to communicate to the Minister of Cultural Heritage and Activities the start and outcomes of that search, which will be considered, however, ended after ninety days from the release, on the above-mentioned Minister’s website, of the outcomes deriving from consulting the appropriate sources, listed in art. 69 septies, if someone has not claimed the ownership.
A diligent search shall be carried out in the Member State of first publication or, in the absence of publication, first broadcast. In the case of cinematographic or audiovisual works the producer of which has his headquarters or habitual residence in a Member State, search shall be carried out in the Member State of his headquarters or habitual residence. In case of cinematographic or audiovisual works coproduced by producers with their headquarters or habitual residence in different Member States, the diligent search will be carried out in each Member States.
Finally, the decree in question states some rules in protection of the orphan works’ right holders, conferring the rights to punt an end, at any time, to “orphan work” status and to collect a fair compensation for uses already put in place, to the extent determined by specific agreements between the right holders’ most representative associations and associations of the organisations listed in art. 69 bis.