Orphan works - what is it and can it be used?
The term "orphan works" may sound strange or frivolous to many people, but it is one of the institutions of intellectual property law. What exactly are orphan works and can they be used in the company's operations? We answer.
Orphan works - definition
Orphan works are named after the English term orphan work and it means works that are still under copyright protection, but permission for use cannot be obtained from the owner of the full copyright. Usually, this is due to the fact that such a person cannot be identified or has been identified, but despite all possible steps taken in this regard, it is not possible to contact them in such a way that they could legally consent to the use of the work or grant permission to use the work. no license. A detailed list of orphan works can be found in Art. 355 of the Copyright and Related Rights Act:
Art. 355. 1. Orphan works are:
1) works published in books, journals, magazines or other forms of publication in print,
2) audiovisual works, as well as works ordered or incorporated into audiovisual works or recorded on videograms, in the use of the audiovisual work or videogram as a whole,
3) works recorded on phonograms
- included in the collections of the entities referred to in sec. 2, if the rights holders are entitled to the copyrights to these works in the field of exploitation listed in paragraph 1. 2, were not identified or found despite the search referred to in art. 356 (...).
Similarly, orphan works are specified in Directive 2012/28 / EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works:
Article 1. 2. This Directive shall apply to:
a) works published in the form of books, magazines, newspapers, magazines and other written texts, in the collections of publicly accessible libraries, educational establishments or museums, as well as in the collections of archives or institutions responsible for film or sound heritage;
(b) cinematographic or audiovisual works and phonograms in the collections of publicly accessible libraries, educational establishments or museums, as well as in the collections of archives or institutions responsible for film or sound heritage; and
(c) cinematographic or audiovisual works and phonograms produced by public service broadcasters up to and including 31 December 2002 and in their archives,
which works are protected by copyright or related rights and which were first published in the territory of a Member State or, in the absence of publication, first broadcast in the territory of a Member State.
3. This Directive shall also apply to works and phonograms referred to in paragraph 1. 2, which have never been published or broadcast, but which have been made available to the public - with the consent of authorized entities - by the organizations referred to in para. 1, only if it can be reasonably assumed that the authorized entities would not object to the use referred to in Art. 6.Member States may limit the application of this paragraph to works and phonograms that have been entrusted to those organizations before 29 October 2014.
4. This Directive shall also apply to works and other subject-matter incorporated in works or phonograms referred to in paragraph 1. 2 and 3, incorporated into them or forming an integral part thereof.
As can be seen, the Community regulation is broader and more detailed and it follows from it that the provisions of the directive apply to every work that has been published on the territory of the European Union, and if the publication did not take place, the place of making the work available to the public is of key importance, as long as it can be considered that the copyright holders of the work would have no objection to the publication of the work and its form.
Who can use orphan works?
It would therefore seem that orphan works can be used in the company's operations - since it is impossible to identify the person who owns the copyright, they can be treated as works from the public domain. Yes - until recently, access to such works was easier and it was not difficult to prove your right to use such works. However, both the aforementioned directive and the 2015 amendment to the Copyright and Related Rights Act, which is the implementation of the EU legal act into the Polish legal system, significantly limited the use of orphan works.Under these legal regulations, the institutions authorized to use such works are:
educational institutions, museums,
institutions responsible for preserving film and music heritage,
public broadcasters (e.g. public television) - however, within the scope strictly defined by the provisions of the directive.
Directive 2012/28 / EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works has definitely excluded the possibility of commercial use of this type of works, which excludes their use in the company's operations. This is important because the previous regulations, although not explicitly, allowed for their use. Currently, however, the use of an orphan work would have the same effect as the use of someone else's work without a permit or license - the consequences of such an act are indicated in the provisions of Chapter 16 of the Act on Copyright and Related Rights.