The Orphan Works Directive 2012/28/EU was published in the Official Journal of the European Union on 27 October 2012. This post provides an overview of the main provisions set forth by the Directive and describes the approach used by the European institutions in a first tentative step towards tackling the modern issues concerning the use of orphan works, particularly in connection with mass-digitalization projects.
The problem with exploitation of orphan works
Orphan works are works of any kind of art (such as books, newspapers or magazine articles, films, etc.) which remain protected by copyright, but whose authors and/or right holders cannot be identified or, even if known, cannot be tracked down.
This situation is a significant obstacle for those persons, companies, institutions or entities that seek to make such works available to the public. Before the adoption of the Directive, the impossibility of identifying or locating the author of the orphan work normally led to a situation of stall. The organization interested in making use of the work was unable to obtain a license and consequently unwilling to use the work, due to the fear of eventually being charged with copyright infringement.
With the advent of the Internet era and with the rise of large-scale digitalization projects (such as Google Books and Europeana) the issues concerning the availability to the public of orphan works came under the spotlight.