Orphan work

An orphan work is, under Article L. 113-10 of the French Intellectual Property Code, a protected and disclosed work whose rightholder cannot be identified or located despite a diligent, documented and serious search. Where a work has several rightholders and one of them has been identified and located, it is not considered an orphan work. The notion responds to the difficulty of digitising and disseminating cultural heritage without incurring an infringement action, and it results from the transposition of Directive 2012/28/EU.

The conditions of qualification

Three cumulative conditions apply. The work must still be protected, which excludes works that have fallen into the public domain, for which the question does not arise, and requires the term of the rights to be checked. It must have been disclosed, since disclosure is a matter for the author alone. Finally, the rightholder must be untraceable after a diligent search, the sources for which are laid down by regulation for each category of works: registers, databases of collective management organisations, library catalogues, legal deposit and publishers’ directories. The search must be carried out in the Member State of first publication and documented.

The regime of use

Articles L. 135-1 et seq. IPC reserve the benefit of the status to certain uses by publicly accessible libraries, museums, archives, film or audio heritage institutions, educational establishments and public service broadcasters, for works in their collections. The works concerned are books, journals, newspapers and other writings, as well as audiovisual and sound works, stand-alone graphic and photographic works being covered only where they are embedded in such works. The permitted uses are making available to the public and reproduction for the purposes of digitisation, making available, indexing, cataloguing, preservation or restoration, in pursuit of cultural, educational and research missions and on a not-for-profit basis. The names of identified authors must be indicated.

The reappearance of the rightholder

Orphan work status is precarious. A rightholder who reappears may put an end to the use at any time and is entitled to fair compensation for the use made of the work, the amount of which takes account of the harm suffered and the non-commercial nature of the exploitation. A user who has complied with the diligent search procedure does, however, escape being treated as an infringer, which is the essential benefit of the scheme. A rightholder can be recognised as such only by substantiating his or her rights, which brings back the ordinary rules on proof of ownership.

Key points

A work is an orphan work only if it is still protected and disclosed, and a diligent search, documented and conducted in accordance with the regulatory sources, has failed to locate any of its rightholders. Only certain cultural institutions may then digitise it and make it available, on a not-for-profit basis, and a rightholder who reappears may bring this to an end in return for compensation. For any commercial use, the user must turn to collective management or refrain.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats is a patent litigation firm. Matters outside that field, such as trade marks, designs, copyright and IT contracts, are handled by practitioners the firm works with regularly, and by the firm itself when they arise in a patent dispute.

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