The Law will enter into force on 21 October 2024.
Objective of the law
Orphan works are works protected by copyright, but whose authors or other right holders are assumed to be unknown. In practice, for a long time the question remained open as to whether it was possible to obtain permission to use an orphan work in the absence of any identifying features of the author (right holder).The Law regulates the procedure for using objects of copyright and neighbouring rights, where the authors or other right holders are unknown.
New provisions
The Law applies only to the following objects of copyright and neighbouring rights:- works of literature, fine arts, decorative and applied arts
- photographic works
- works obtained by means similar to photography
- musical works (with or without text)
- phonograms
- performances
- the name of the author (right holder) is not established; or
- the name of the author (right holder) is established, but there is no information about the place of residence of the citizen or the address of the legal entity, which allows the sending of legally significant communications.
- an “orphan” intellectual property object, as a rule, cannot simply be used without applying to the organisation for rights management on a collective basis;
- it is obligatory to take appropriate measures to identify the author or other right holder and/or his/her residence and location;
- the content of the application of a person claiming to use an object of copyright or neighbouring rights is determined, including information on the measures taken by the applicant to find the author or other right holder;
- a mandatory list of such measures is defined, ranging from recourse to open sources of information to a search of library and archive collections;
- the accredited organisation must verify the content of the application of the person claiming to use the “orphan” object;
- a period of 90 business days is established from the date of placing an announcement on the search for the author or other right holder on the official website of the accredited organisation, during which time the author may still be “found”.
At the level of by-laws, new regulation may appear, providing, among other things:
- requirements for the composition of information in the application of the interested party;
- requirements for the list of measures to search for the right holder;
- list of information systems and other sources to be used for the search.
Permissible use
In order to use an “orphan” object, the interested party must carry out a full “investigation” to confirm whether the intellectual property object may be recognised as being “orphan”, and an accredited collective rights management organisation (CRMO) must cross-check the results of that investigation.Subject to receiving an “orphan” designation, the interested party may be granted the right to use the object under a royalty-free, non-exclusive licence. The relevant usage fee will be credited to a nominal account, which accredited CRMOs are responsible for.
Once a licence has been granted, “orphan” objects may only be used in the following ways:
- reproduction, including making a copy;
- distribution by selling a copy or other disposal;
- making it available to the public.
