Works Orphans

Orphan Works DatabaseOrphaned works are considered to be those whose right holders have not been identified or, if they have been, have not been located despite having carried out a diligent search prior to it.

      L'article 37bis of the Intellectual Property Law (LPI), as a transposition of the Directive 2012 / 28 / EU, regulates the uses that the Educational centers, museums, libraries, hypermarkets accessible to the public, as well as public broadcasting organizations, archives, sound recordings and film libraries they can do orphan works available in your background:

      Types of orphan works
      • Cinematographic or audiovisual works, phonograms and works published in the form of books, newspapers, magazines or other printed material that are included in the collections of educational centers, museums, libraries and hypermarkets accessible to the public, as well as archives, sound recordings and film libraries
      • Cinematographic or audiovisual works and phonograms produced by public broadcasting organizations until 31 of December of 2002 inclusive, and that appear in their archives.
      Permitted uses

      The aforementioned centers may carry out the uses of the following orphan works, provided that the conditions established in thearticle 37bis of the LPI:

      • Reproduction, for purposes of digitalization
      • Made available to the public
      • Indexing, cataloging
      • Conservation or restoration
      • Public communication
      Terms of use
      • Permitted uses can only be carried out without profit motive and in order to achieve objectives related to the mission of public interest of the responsible centers, in particular the conservation and restoration of the works that appear in their collection and the facilitation of access to it for cultural and educational purposes.
      • Orphan works can be used provided they have been published for the first time or, in the absence of publication, have been broadcasted for the first time in a European Union Member State.

      • This use can be carried out after one diligent search, in the aforementioned State, of the holders of the intellectual property rights of the work orphan. In the case of cinematographic or audiovisual works whose producer has his habitual residence or residence in a Member State of the European Union, the search for headlines must be made in that State.

        The aforementioned entities that have made available to the public, with the consent of their rights holders, works orphan works not published or broadcast, may be used, when it is reasonable to assume that their owners would not oppose the intended uses of 'article 37bis of the LPI. In this case, the search referred to in the preceding paragraph must be carried out in Spain.

      Orphan works can only be used if the responsible institutions have carried out one diligent search of potential rightholders, as detailed in the4 article of the Royal Decree 224 / 2016, of 27 of May, by which develops the legal regime of the orphan works:

      Information sources
      • The diligent search must be carried out in the sources of information determined by regulation (art. 4.4 of the RD 224 / 2016), without prejudice to the forced consultation of additional sources available in other countries where there are indications of the existence of pertinent information about the holders.
      Referral and registration of the search made
      • The responsible institutions must register the pertinent data of the search in the 'Orphan works database, created and managed by the Office of Intellectual Property of the European Union (art. 4.8 ofl RD 224 / 2016).
      • The responsible institutions must maintain and maintain a register of the diligent searches carried out, including the certificates issued by the holders of the sources of information consulted (art. 5 of the RD 224 / 2016).

      Holders of rights may at any time request the competent national authority to determine that their work is not orphaned (art. 6 of the RD 224 / 2016).

      If the national authority determines that the work is not orphaned, holders of the rights may ask the corresponding beneficiary body to pay a fee equitable compensation by the uses made of the work from the moment in which it acquired the condition of orphaned until the presentation of request of the end of the same (art. 7 of the RD 224 / 2016).

      Orphan works should not be confused with works that have been exhausted:

      Orphan work

      Work whose rights holders have not been identified or, if they have been, have not been located despite having carried out a previous diligent search

      Work exhausted Work of which all copies have already been sold or distributed, with no foresight of a new impression or reissue on the part of the corresponding publisher.
      In relation to this topic, it is remarkable Memorandum of Understanding (MoU) on Key Principles on the Digitization and Making Available of Out-of-Commerce Works, an agreement promoted by the European Union and negotiated between various entities representing libraries, on the one hand, and publishers, authors and collective rights management entities on the other, which includes the main elements that both parties must have account for llicenciar the digitization and making available of books or magazines that are sold out.

      More information

      Last update: 27 / 05 / 2024