The legal dilemmas concerning orphan works, which refer to works binded by copyright protection but are void of any traceable author or right holder, have become especially relevant within the scope of global intellectual property discussions. Orphan works can range from publications such as books, journals, cinematographic visual works, phonograms, or even other incorporated or embedded works. The primary reason as to why orphan works can become problematic is due to the lack of transparency regarding the roots of their owners, which means those who care to utilize these sources face potential liability for copyright infringement.
In an effort to facilitate the digital exchange of information regarding orphan works, theEuropean Union Intellectual Property Office (EUIPO) has been credited for the establishment of an orphan works database. It aims to maintain a single online database at the EU level, which has been available since October 29, 2014, and has recorded nearly 6000 entries as of May 2022.
Key users of the orphan works database are right holders, beneficiary organizations, competent
national authorities, as well as the general public. With respect to the information composed of a proper entry, the database necessitates a general description of the work, relevant embedded works, its status, as well as the utilization of the orphan. This record criterion helps right holders in claiming an end to orphan work status.
The orphan works database has paved the way for newer out-of-commerce works to also expedite the process of cultural heritage institutions’ mass digitization projects. Contrary to orphan works, out-of-commerce works still reside within the realm of legal copyright protection; however, they are no longer available for commercial use. Nonetheless, the out-of-commerce works portal provides access to immense information regarding out-of-commerce works, including details about its current and future uses. This accessibility makes it much easier for right holders to opt-out as well. It’s primarily targeted for use by data providers, authorities designated in Member States, interested public users, and the actual right holders of out-of-commerce work.
There have long been many challenges bearing the accessibility to both orphan and out-of-commerce works due to the ambiguity surrounding fundamental copyright diptychs. The out-of-commerce works portal and the orphan works database serve as an instrument for cultural heritage institutions who wish to digitize “forgotten” European cultural heritage and copyright protected content within the domain of their collections. Furthermore, the registries enable an efficient means of metadata accumulation from a myriad of European cultural heritage institutions and institute a system of automated data ingestion.
The above information regarding recent developments on orphan and out-of-commerce works were extracted from a recent EUIPO webinar on May 25, 2022.
For more information regarding orphan and out-of-commerce works, or if you are interested in accessing the orphan work database and out-of-commerce works portal, please visit the following sites:
Orphan works database: https://euipo.europa.eu/orphanworks/
Out-of-commerce works portal: https://euipo.europa.eu/out-of-commerce/#/
Authors: Jenna Abuelhaija, Riccardo Ciullo