Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on certain permitted uses of orphan works
Date: 2011-05-24
Institutions: European Commission
Subjects: archives, audiovisual production, copyright, digital technology, dissemination of information, educational institution, film industry, museum, public library, teaching

EUROPEAN COMMISSION 

Brussels, 24.5.2011 
COM(2011) 289 final 

2011/0136 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on certain permitted uses of orphan works 

(Text with EEA relevance) 

{SEC(2011) 615 final} 
{SEC(2011) 616 final} 

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

Prior  authorisations  are  necessary  to  make  works  protected  by  copyright  available  to  the 
public  in  an  online  digital  library  or  archive.  When  the  relevant  copyright  owner  cannot  be 
identified  or  found  the  works  in  question  are  known  as  orphan  works.  Consequently,  the 
necessary authorisations to make available works online cannot be obtained. Libraries or other 
institutions  that  make  works  available  online  to  the  public  without  prior  authorisation  risk 
infringing copyright.  

The main objective of this proposal is to create a legal framework to ensure the lawful, cross-
border online access to orphan works contained in online digital libraries or archives operated 
by a variety of institutions that are specified in the proposal when such orphan works are used 
in the pursuance of the public interest mission of such institutions. Such works include works 
which are published in the form of books, journals, newspapers, magazines or other writings, 
including works embedded in them, as well as audiovisual and cinematographic works in the 
collections  of  film  heritage  institutions,  and  audio,  audiovisual  and  cinematographic  works 
contained in the archives of public service broadcasting organisations and produced by them. 
With regard to the archives of public service broadcasters and the special position of public 
service broadcasters as producers there is a need to limit the phenomena of orphan works by 
providing a cut off date for works that are within the scope of the proposal. 

This aim is to be achieved through a system of mutual recognition of the orphan status of a 
work.  In  order  to  establish  the  "orphan  work"  status,  libraries,  educational  establishments, 
museums or archives, film heritage institutions and public service broadcasting organisations 
are required to carry out a prior diligent search, in line with the requirements specified in the 
proposed directive, in the Member State where the work was first published. Once the diligent 
search  establishes  the  "orphan  status"  of  a  work,  the  work  in  question  will  be  deemed  an 
orphan  work  throughout  the  EU,  obviating  the  need  for  multiple  diligent  searches.  On  this 
basis, it will be possible to make orphan works available online for cultural and educational 
purposes without prior authorisation unless the owner of the work puts an end to the orphan 
status.  

This  initiative  builds  on  the  Commission's  2006  Recommendation  on  the  digitisation  and 
online  accessibility  of  cultural  content  and  digital  preservation1.  Despite 
the 
Recommendation,  only  a  handful  of  Member  States  have  implemented  orphan  works 
legislation.  The  few  existing  national  solutions  are  circumscribed  by  the  fact  that  they  limit 
online access to citizens resident in their national territories.  

The creation of a legal framework to facilitate the cross-border digitisation and dissemination 
of orphan works in the single market is also one of the key actions identified in the Digital 
Agenda for Europe2 which is part of the Europe 2020 Strategy3. 

1 

2 
3 

Commission  Recommendation  2006/585/EC  of  24  August  2006  on  the  digitisation  and  online 
accessibility of cultural content and digital preservation (OJ L 236, 31.8.2006, p. 28-30). 
A Digital Agenda for Europe - COM(2010) 245. 
Europe 2020: A strategy for smart, sustainable and inclusive growth: 
http://ec.europa.eu/eu2020/index_en.htm 

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2. 

RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES AND 
IMPACT ASSESSMENTS 

•  Consultation of interested parties 

In  2006,  a  High  Level  Expert  Group  on  Digital  Libraries  was  established  bringing  together 
stakeholders  concerned  with  digitization  and  online  accessibility  of  cultural  material, 
including orphan works4. The Group adopted a "Final Report on Digital Preservation, Orphan 
Works  and  Out-of-Print  Works"5.  A  "Memorandum  of  Understanding  on  Diligent  Search 
Guidelines  for  Orphan  Works"  was  signed  by  representatives  of  libraries,  archives  and 
rightholders6. 

In 2008, the Commission's Green Paper on Copyright in the Knowledge Economy7 sought the 
views  of  stakeholders  on,  inter  alia,  the  necessity  of  further  action  in  relation  to  orphan 
works8.  On  19  October  2009,  the  Commission  adopted  the  follow-up  Communication  on 
Copyright  in  the  Knowledge  Economy9  in  which  it  announced  that  it  would  carry  out  an 
impact assessment on how to deal with orphan works in the EU.  

On  26  October  2009,  the  Commission  held  a  public  hearing  where  all  interested  parties 
presented their views on orphan works. On 10 November 2009, the Swedish Presidency and 
the European Parliament organised a joint hearing on orphan works and access to works for 
the visually impaired. 

Throughout 2009-2010, the Commission services held meetings with a variety of stakeholders 
on a bilateral basis to discuss the relevant issues in more detail.  

•  Impact assessment 

The  impact  assessment  analyses  six  options:  (1)  do  nothing,  (2)  a  statutory  exception  to 
copyright,  (3)  extended  collective  licensing,  (4)  an  orphan-specific  licence  granted  by 
collecting  societies,  (5)  an  orphan-specific  licence  granted  by  a  public  body,  and  (6)  the 
mutual recognition of national solutions regarding orphan works.  

All  policy  options  (except  Option  1)  are  premised  on  the  adoption  of  a  directive  that  will 
require  all  Member  States  to  enact  specific  orphan  works  legislation  within  a  specified 
timeframe.  All  policy  options,  except  Option  3,  are  premised  on  the  requirement  that  a 
diligent  search  is  necessary  prior  to  the  making  available  of  an  orphan  work  in  an  online 
digital library.  

4 

5 
6 
7 
8 

9 

Commission  Decision  of  27  February  2006  on  setting  up  a  High  Level  Expert  Group  on  Digital 
Libraries (OJ L 63, 4.3.2006, p. 25-27). The Group was subsequently renewed by Commission Decision 
of 25 March 2009 (OJ 82, 28.3.2009, p. 9-11). 
http://ec.europa.eu/information_society/activities/digital_libraries/experts/hleg/index_en.htm 
http://ec.europa.eu/information_society/activities/digital_libraries/doc/hleg/orphan/guidelines.pdf  
COM(2008) 466. 
Responses 
the  consultation  are  available  at  http://circa.europa.eu/Public/irc/markt/markt_ 
consultations/library?l=/copyright_neighbouring/consultation_copyright&vm=detailed&sb=Title.  See 
Annex, Chapters 1 and 2 for the analysis of the responses. 
COM(2009) 532. 

to 

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The statutory exception (Option 2) would avoid the burden of  obtaining a copyright licence 
but maintain the prior diligent search. However, this option provides for less legal certainty as 
there is no third party certification of the diligent search. 

Option 3, the model of "extended collective licences" assumes that, once a collecting society 
authorises a library to make books available on a website, this licence, by virtue of a statutory 
extension, will cover all works in that category, including orphan works (i.e., books, films). 
The collecting society is considered to represent such "outliers" independent of whether it has 
carried out a diligent search to identify or locate the author. The absence of a diligent search 
prevents  an  approach  based  on  mutual  recognition  of  the  orphan  work  status.  An  extended 
collective  licence  is  also  normally  only  valid  in the  national  territory  in  which  the  statutory 
presumption applies.  

The specific licence for orphan works (Option 4) provides libraries and the other beneficiaries 
with a high level of legal certainty against damage claims by reappearing owners. This option 
requires  both  a  diligent  search  to  determine  the  orphan  status  prior  to  the  granting  of  the 
licence and a specific licensing arrangement pertaining to orphan works.  

The government licence covering orphan works (Option 5) constitutes a public certification of 
the diligent search and thus grants a high level of legal certainty to the digital library. But this 
certainty comes at a price in terms of administrative burden. This is why earlier incarnations 
of this system have had limited impact and are not used in relation to large scale digital library 
projects. 

An approach based on mutual recognition of the orphan status (Option 6) allows libraries and 
other  beneficiaries  to  enjoy  legal  certainty  as  to  the  "orphan  status"  of  a  particular  work. 
Mutual  recognition  ensures  that  the  orphan  works  contained  in  a  digital  library  would  be 
available to citizens across Europe. 

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

•  Summary of the proposed action 

The proposal deals with the diligent search necessary to identify whether a particular work is 
an  orphan  work  and,  once  this  has  been  established,  to  make  it  legal  to  make  this  work 
available to the public online under certain conditions and for specific purposes. The proposal 
also  clarifies  the  application  of  extended  collective  licences  to  works  which  are  potentially 
orphan works. 

•  Legal basis 

Article 114 TFEU  

•  Subsidiarity principle 

A legislative proposal in the form of a directive is necessary because voluntary approaches, 
notably Commission  Recommendation  2006/585/EC of 24  August 2006, have  not produced 
the  desired  result.  In  addition,  the  coexistence  of  uncoordinated  national  approaches 

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governing  orphan  works  in  online  libraries  makes  it  difficult  for  a  library  to  make  orphan 
works available across EU Member States10.  

•  Proportionality principle 

Because the orphan work problem is a major impediment to the creation of digital libraries, a 
coherent  EU  framework  for  online  access  to  orphan  works  is  the  least  intrusive  option  to 
achieve  the  desired  result.  All  other  approaches  would  require  significantly  more 
administrative overhead and licensing infrastructures just for orphan works.  

•  Choice of instruments 

Proposed instrument: Directive. 

Main articles of the proposal 

Article  1  sets  out  the  scope  and  subject  matter  of  the  Directive  as  a  variety  of  material 
contained in public libraries, educational establishments, museums and archives as well as in 
the  collections  of  film  heritage  institutions  and  archives  of  public  service  broadcasting 
organisations.  In  the  print  sector,  it  also  covers  visual  works  such  as  photographs  and 
illustrations contained in these published works.  

Article  2  contains  the  definition  of  an  orphan  work.  The  definition  of  an  orphan  work 
incorporates the requirement of a diligent search.  

Article 3 explains how the diligent search is to be carried out by those who are permitted to 
use  orphan  works.  Article  3  clarifies  that  a  diligent  search  need  only  be  carried  out  in  the 
Member State of first publication of the work.  

Article  4  establishes  the  principle  of  mutual  recognition  whereby  a  work  deemed  to  be  an 
orphan  work  after  a  diligent  search  carried  out  in  accordance  with  Article  3  shall  be 
considered an orphan work in all Member States.  

Article 5 concerns the possibility to put an end to the orphan work status.  

Article  6  enumerates  the  uses  that  the  named  beneficiaries  are  permitted  to  undertake  with 
respect to orphan works (to make them available to the public, within the meaning of Article 3 
of  Directive  2001/29/EC,  and  to  reproduce  such  works,  within  the  meaning  of  Article  2  of 
Directive 2001/29/EC, for the purposes of achieving their public interest mission ). 

Article  7  specifies  how  Member  States  may  permit  certain  additional  uses  under  specific 
conditions. 

4. 

BUDGETARY IMPLICATION  

The proposal has no implication for the Union budget.  

10 

In some Member States, e.g. France, preparatory work on a legislative solution expressly acknowledges 
that  a  European  solution  is  required  -  Conseil  Supérieur  de  la  Propriété  Littéraire  et  Artistique 
Commission sur les œuvres orphelines, p. 19. 

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5. 

OPTIONAL ELEMENTS 

•  European Economic Area 

The  proposed  act  concerns  an  EEA  matter  and  should  extend  to  the  European  Economic 
Area.E-989 

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2011/0136 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on certain permitted uses of orphan works 

(Text with EEA relevance) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Articles 49, 56 and 114 thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national Parliaments, 

Having regard to the opinion of the European Economic and Social Committee11, 

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

Libraries,  museums,  archives,  edcuational  establishments,  film  heritage  institutions 
and public service broadcasting organisations are engaged in large-scale digitisation of 
their  collections  or  achives  in  order  to  create  European  Digital  Libraries.  Libraries, 
museums,  archives,  edcuational  establishments,  film  heritage  institutions  and  public 
service broadcasting organisations in the Member States contribute to the preservation 
and  dissemination  of  European  cultural  heritage,  which  is  also  important  for  the 
creation  of  European  Digital  Libraries,  such  as  Europeana.  Technologies  for  mass 
scale digitisation of print materials and for search and indexing enhance the research 
value of the libraries' collections.  

The  need  to  promote  free  movement  of  knowledge  and  innovation  in  the  internal 
market  is  an  important  component  of  the  Europe  2020  Strategy,  as  set  out  in  the 
Communication from the Commission "Europe 2020: A strategy for smart, sustainable 
and  inclusive  growth"12,  which  includes  as  one  of  its  flagship  initiatives  the 
development of a Digital Agenda for Europe. 

Creating a legal framework to facilitate the digitisation and dissemination of works for 
which  no  author  is  identified  or,  even  if  identified,  is  not  located,  so  called  orphan 
works,  is  a  key  action  of  the  Digital  Agenda  for  Europe,  as  set  out  in  the 

11 
12 

OJ C , , p. . 
COM(2010) 2020. 

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(4) 

(5) 

(6) 

(7) 

(8) 

Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the 
European Economic and Social Committee and the Committee of Regions – A Digital 
Agenda for Europe13. 

The exclusive rights for authors of reproduction and of making available to the public 
of their works, as harmonised under Directive 2001/29/EC of the European Parliament 
and Council of 22 May 2001 on the harmonisation of certain aspects of copyright and 
related rights in the information society14, require the consent of the author prior to the 
digitisation and making available of a work. 

In the case of orphan works, such prior consent to carry out acts of reproduction or of 
making available to the public cannot be obtained. 

Different  approaches  in  the  Member  States  to  the  recognition  of  orphan  work  status 
can present obstacles to the functioning of the internal market and the use and cross-
border access to orphan works. Such different approaches can also result in restrictions 
on  the  free  movement  of  goods  and  services  which  incorporate  cultural  content. 
Therefore, ensuring the mutual recognition of such status is appropriate. 

In  particular,  a  common  approach  to  determine  the  orphan  status  and  the  permitted 
uses of orphan works is necessary to ensure legal certainty in the internal market with 
respect to the use of orphan works by libraries, museums, educational establishments, 
archives, film heritage institutions and public service broadcasting organisations. 

Cinematographic,  audio  and  audiovisual  works  in  the  archives  of  public  service 
broadcasting organisations and produced by them include orphan works. Taking into 
account  the  special  position  of  broadcasters  as  producers  of  audio  and  audiovisual 
material  and  the  need  to  adopt  measures  to  limit  the  phenomena  of  orphan  works  in 
the  future,  it  is  appropriate  to  set  a  cut  off  date  relating  to  the  application  of  this 
Directive  as  far  as  the  works  in  the  archives  of  broadcasting  organisations  are 
concerned. 

(9) 

For  the  purposes  of  this  Directive,  cinematographic,  audio  and  audiovisual  works  in 
the  archives  of  public  service  broadcasting  organisations  should  be  understood  as 
including works commissioned by such organisations for their exclusive exploitation. 

(10)  The  creation  of  large  online  libraries  facilitate  electronic  search  and  discovery  tools 
which  open  up  new  sources  of  discovery  for  researchers  and  academics  that  would 
otherwise  have  to  content  themselves  with  more  traditional  and  analogue  search 
methods.  

(11)  For reasons of international comity, this Directive should only apply to works that are 

first published or broadcast in a Member State.  

(12)  Before a work can be considered an orphan work, a good faith and reasonable diligent 
search  for  the  author  should  be  carried  out.  Member  States  should  be  permitted  to 
provide that such a diligent search may be carried out by the organisations referred to 
in this Directive or by other organisations. 

13 
14 

COM(2010) 245. 
OJ L 167, 22.6.2001, p. 10. 

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(13) 

It is appropriate to provide for a harmonised approach concerning such diligent search 
in  order  to  ensure  a  high  level  of  protection  of  copyright  in  the  Union.  A  diligent 
search  should  involve  the  consultation  of  publicly  accessible  databases  that  supply 
information on the copyright status of a work. Moreover, in order to avoid duplication 
of  costly  digitisation,  Member  States  should  ensure  that  use  of  orphan  works  by  the 
organisations referred to in this Directive is recorded in a publicly accessible database. 
To  the  extent  possible,  publicly  accessible  databases  of  search  results  and  use  of 
orphan works should be designed and implemented so as to permit interlinkage with 
each  other  on  a  pan-European  level  and  consultation  thereof  through  a  single  entry 
point. 

(14)  Orphan  works  may  have  several  authors  or  include  other  works  or  protected  subject 

matter. This Directive should not affect the rights of known or identified rightholders. 

(15) 

(16) 

(17) 

In order to avoid duplication of search efforts, a diligent search should be conducted 
only in the Member State where the work was first published or broadcast. In order to 
enable other Member States to ascertain whether the orphan status of a work has been 
established in another Member State, Member States should ensure that the results of 
diligent  searches  carried  out  in  their  territories  are  recorded  in  a  publicly  accessible 
database. 

It is appropriate to provide that authors are entitled to put an end to the orphan status 
in case they come forward to claim their works. 

In  order  to  promote  learning  and  culture,  Member  States  should  permit  libraries, 
educational  establishments  and  museums  which  are  publicly  accessible,  as  well  as 
archives,  film  heritage  institutions  and  public  service  broadcasting  organisations,  to 
make  available  and  reproduce  orphan  works,  provided  such  use  fulfils  their  public 
interest  missions,  notably  preservation,  restoration  and  the  provision  of  cultural  and 
educational  access  to  works  contained  in  their  collections.  Film  heritage  institutions 
should, for the purposes of this Directive, cover organisations designated by Member 
States  to  collect,  catalogue,  preserve  and  restore  films  forming  part  of  their  cultural 
heritage. 

(18)  Contractual  arrangements  may  play  a  role  in  fostering  the  digitisation  of  European 
cultural  heritage,  it  being  understood  that  libraries,  educational  establishments, 
museums or archives and film heritage institutions may, with a view to undertake the 
uses permitted under this Directive, conclude agreements with commercial partners for 
the digitisation and making available of orphan works. These agreements may include 
financial contributions by such partners. 

(19) 

In  order  to  foster  the  Union's  citizens'  access  to  Europe's  cultural  heritage,  it  is  also 
necessary to ensure that orphan works which have been digitised and made available 
to the public in one Member State are also available in other Member States. Publicly 
accessible  libraries,  educational  establishments,  museum,  archives,  film  heritage 
institutions and public service broadcasting organisations that use an orphan work in 
order to achieve their public interest missions should be able to make the orphan work 
available to the public in other Member States. 

(20)  This  Directive  should  be  without  prejudice  to  existing  arrangements  in  the  Member 
States concerning the management of rights such as extended collective licences. 

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(21)  Member States should also be allowed to permit the use of orphan works for purposes 
which  go  beyond  the  public  interest  missions  of  the  organisations  covered  by  this 
Directive.  In  such  circumstances,  the  rights  and  legitimate  interests  of  rightholders 
should be protected. 

(22)  When  a  Member  State  authorises,  under  the  conditions  established  in  this  Directive, 
the  use  of  orphan  works  by  publicly  accessible  libraries,  educational  establishments, 
museums,  archives,  film  heritage 
institutions  or  public  service  broadcasting 
organisations  for  purposes  beyond  their  public  interest  mission,  rightholders  who 
come forward to claim their works should be remunerated. Such remuneration should 
take account of the type of work and the use concerned. Member States may provide 
that revenues collected from such use of orphan works for the purpose of remuneration 
but  which  are  unclaimed  after  the  expiry  of  the  period  fixed  in  accordance  with  this 
Directive should contribute to financing rights information sources that will facilitate 
diligent  search,  by  low-cost  and  automated  means,  in  respect  of  categories  of  works 
that fall actually or potentially within the scope of application of this Directive. 

(23)  Since  the  objectives  of  the  action  to  be  taken,  namely  legal  certainty  with  respect  to 
the  use  of  orphan  works,  cannot  be  sufficiently  achieved  by  the  Member  States  and 
can  therefore,  by  reason  of  the  uniformity  of  the  rules  governing  the  use  of  orphan 
works be better achieved at Union level, the Union may adopt measures, in accordance 
with  the  principle  of  subsidiarity  as  set  out  in  Article  5  of  the  Treaty  on  European 
Union.  In  accordance  with  the  principle  of  proportionality,  as  set  out  in  that  Article, 
this Directive does not exceed what is necessary to achieve those objectives. 

HAVE ADOPTED THIS DIRECTIVE: 

Article 1  
Subject matter and scope  

1. 

2. 

This  Directive  concerns  certain  uses  of  orphan  works  undertaken  by  publicly 
accessible  libraries,  educational  establishments  or  museums  as  well  as  by  archives, 
film heritage institutions and public service broadcasting organizations. 

This Directive applies to works first published or broadcast in a Member State and 
which are: 

(1)  Works  published  in  the  form  of  books,  journals,  newspapers,  magazines  or 
other  writings,  and  which  are  contained  in  the  collections  of  publicly 
accessible libraries, educational establishments, museums or archives, or  

(2) 

(3) 

Cinematographic  or  audiovisual  works  contained  in  the  collections  of  film 
heritage institutions, or 

Cinematographic,  audio  or  audiovisual  works  produced  by  public  service 
broadcasting  organisations  before  the  31  December  2002  and  contained  in 
their archives. 

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Article 2  
Orphan works 

1. 

2. 

1. 

2. 

3. 

4. 

A  work  shall  be  considered  an  orphan  work  if  the  rightholder  in  the  work  is  not 
identified  or,  even  if  identified,  is  not  located  after  a  diligent  search  for  the 
rightholder has been carried out and recorded in accordance with Article 3. 

Where a work has more than one rightholder, and one of the rightholders has been 
identified and located, that work shall not be considered an orphan work.  

Article 3  
Diligent search 

For the purposes of establishing whether a work is an orphan work, the organisations 
referred  to  in  Article  1(1)  shall  ensure  that  a  diligent  search  is  carried  out  for  each 
work, by consulting the appropriate sources for the category of works in question. 

The sources that are appropriate for each category of works shall be determined by 
each  Member  State,  in  consultation  with  rightholders  and  users,  and  include,  the 
sources listed in the Annex.  

A  diligent  search  is  required  to  be  carried  out  only  in  the  Member  State  of  first 
publication or broadcast. 

Member  States  shall  ensure  that  the  results  of  diligent  searches  carried  out  in  their 
territories are recorded in a publicly accessible database. 

Article 4 
Mutual recognition of orphan work status 

A work which is considered an orphan work according to Article 2 in a Member State shall be 
considered an orphan work in all Member States.  

Article 5 
End of orphan work status 

Member States shall ensure that a rightholder in a work considered to be orphan has, at any 
time, the possibility of putting an end to the orphan status. 

Article 6  
Permitted uses of orphan works 

1. 

Member  States  shall  ensure  that  the  organisations  referred  to  in  Article  1(1)  are 
permitted to use an orphan work in the following ways: 

(a)  by  making  the  orphan  work  available,  within  the  meaning  of  Article  3  of 

Directive 2001/29/EC; 

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(b)  by  acts  of  reproduction,  within  the  meaning  of  Article  2  of  Directive 
2001/29/EC,  for  the  purposes  of  digitization,  making  available,  indexing, 
cataloguing, preservation or restoration. 

However,  unless  otherwise  provided  in  Article  7,  the  organisations  referred  to  in 
Article  1(1)  may  not  use  orphan  works  in  order  to  achieve  aims  other  than  their 
public  interest  missions,  notably  preservation,  restoration  and  the  provision  of 
cultural and educational access to works contained in their collections. 

This Directive is without prejudice to the freedom of contract of such organisations 
in the pursuit of their public interest missions. 

Member  States  shall  ensure  that  the  organisations  referred  to  in  Article  1(1),  when 
using  orphan  works  in  accordance  with  paragraph  1,  maintain  records  of  their 
diligent search and publicly accessible records of use. 

2. 

3. 

4. 

Article 7  
Authorised uses of orphan works 

1. 

Member States may authorise the organisations referred to in Article 1(1) to use an 
orphan work for purposes other than those referred to in Article 6(2), provided that: 

(1) 

(2) 

(3) 

(4) 

(5) 

the  organisations  referred  to  in  Article  1(1)  maintain  records  of  their  diligent 
search; 

the  organisations  maintain  publicly  accessible  records  of  their  use  of  orphan 
works; 

in the case of an orphan work where a rightholder has been identified but not 
located, the name of the righholder is indicated in any use of the work; 

rightholders  which  put  an  end  to  the  orphan  status  of  the  work,  within  the 
meaning  of  Article  5,  are  remunerated  for  the  use  that  has  been  made  of  the 
work by the organisations referred to in Article 1(1); 

rightholders may claim their remuneration under point (4) within a period fixed 
by Member States and which shall not be less than five years from the date of 
the act giving rise to the claim. 

2. 

Member  States  may  chose  the  means  for  authorising  use  within  the  meaning  of 
paragraph  1  and  remain  free  to  decide  on  the  use  of  any  revenues  which  are 
unclaimed after the expiry of the period fixed in accordance with paragraph 1(5). 

Article 8  
Continued application of other legal provisions 

This Directive shall be without prejudice to provisions concerning in particular patent rights, 
trade  marks,  design  rights,  utility  models,  topographies  of  semi-conductor  products,  type 
faces,  conditional  access,  access  to  cable  of  broadcasting  services,  protection  of  national 
treasures,  legal  deposit  requirements,  laws  on  restrictive  practices  and  unfair  competition, 

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trade  secrets,  security,  confidentiality,  data  protection  and  privacy,  access  to  public 
documents, the law of contract. 

1. 

2. 

1. 

Article 9 
Application in time 

The  provisions  of  this  Directive  shall  apply  in  respect  of  all  works  referred  to  in 
Article  1  which  are,  on  [transposition  date],  protected  by  the  Member  States' 
legislation in the field of copyright. 

This  Directive  shall  apply  without  prejudice  to  any  acts  concluded  and  rights 
acquired before [transposition date]. 

Article 10 
Transposition 

Member  States  shall  bring  into  force  the  laws,  regulations  and  administrative 
provisions  necessary  to  comply  with  this  Directive  by  […]  at  the  latest.  They  shall 
forthwith  communicate  to  the  Commission  the  text  of  those  provisions  and  a 
correlation table between those provisions and this Directive. 

When  Member  States  adopt  those  provisions,  they  shall  contain  a  reference  to  this 
Directive  or  be  accompanied  by  such  a  reference  on  the  occasion  of  their  official 
publication. Member States shall determine how such reference is to be made. 

2. 

Member States shall communicate to the Commission the text of the main provisions 
of national law which they adopt in the field covered by this Directive. 

Article 11 
Review clause 

The  Commission  shall  keep  under  constant  review  the  development  of  rights  information 
sources  and  shall,  at  the  latest  one  year  after  the  entry  into  force  of  this  Directive,  and  at 
annual intervals thereafter, submit a report concerning the possible inclusion in the scope of 
application of this Directive of works or other protected subject matter not currently included 
in such scope, and in particular phonograms and stand alone photographs and other images. 

By  [one  year  after  transposition  date],  the  Commission  shall  submit  to  the  European 
Parliament, the Council and the Economic and Social Committee, a report on the application 
of this Directive, in the light of the development of digital libraries. 

When  necessary,  in  particular  to  ensure  the  functioning  of  the  Internal  Market,  the 
Commission shall submit proposals for the amendment of this Directive. 

Article 12 
Entry into Force 

This Directive shall enter into force on the day following that of its publication in the Official 
Journal of the European Union. 

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Article 13 

This Directive is addressed to the Member States. 

Done at Brussels,  

For the European Parliament 
The President 

For the Council 
The President 

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The sources referred to in Article 3(2) shall be the following: 

ANNEX 

(1) 

For published books: 

(a)  Legal deposit; 

(b)  Existing  databases  and  registries,  including  ARROW  (Accessible  Registries  of  Rights 
Information  and  Orphan  Works)  and  WATCH  (Writers,  Artists  and  their  Copyright 
Holders) and the ISBN (International Standard Book Number); 

(c)  The  databases  of  the  relevant  collecting  societies,  in  particular  reproduction  rights 

organisations. 

(2) 

For journals and periodicals: 

(a)  The ISSN (International Standard Serial Number) for periodical publications; 

(b) 

Indexes and catalogues from library holdings and collections. 

(3) 

For newspapers and magazines: 

(a)  The  publishers  association  in  the  respective  country  and  the  authors  and  journalists 

associations; 

(b)  Legal deposit; 

(c)  The databases of relevant collecting society including Reproduction rights organisations. 

(4) 

For visual works, including fine art, photography, illustration, design, architecture, sketches of 
the latter works and others that are contained in books, journals, newspapers and magazines: 

(a)  The sources referred to in points (1), (2) and (3); 

(b)  The  databases  of  the  relevant  collecting  societies  in  particular  for  visual  arts  and 

including reproduction rights organisations; 

(c)  The databases of picture agencies where applicable. 

(5) 

For  audiovisual  works  contained  in  the  collections  of  film  heritage  institutions  and  public 
service broadcasting organisations: 

(a)  Legal deposit; 

(b)  Databases of film heritage institutions and national libraries; 

(c)  Databases with relevant standards and identifiers such as ISAN for audiovisual material; 

(d)  The  databases  of  the  relevant  collecting  societies  in  particular  for  authors,  performers, 

phonogram producers and audiovisual producers.  

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