Recommendations of the Network of Multimedia Resource Centres
on Dealing with "Orphan Works" - 29 October 2007
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An orphan work is a copyrighted property whose holders cannot be identified or located for the purpose of securing permission to use. Audiovisual archives are especially affected by the orphan works problem. A poll of 23 European film archives conducted by the Association des Cinémathèques Européennes (ACE) in 2005 showed that in these archives alone some 50,000 cinematic works, mainly non-fiction material dating before 1950, are considered orphaned (Dillmann,Claudia: European Digital Libraries Initiative: The Stakeholders's Perspectives. Brussels, 14 September 2007 .
As a consequence, these works are unavailable for any use at all and are in danger of ending up in cultural oblivion.
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The affiliated institutions of the Network of Multimedia Resource Centres – all publicly funded non-commercial institutions with a cultural mandate – are also faced with the problem in many ways. For one thing they have at their disposal numerous audiovisual documents, some of them unique, whose right-holders cannot be found. Similarly, in multimedia searches for their projects, cultural institutions discover “orphan works” which owing to copyright or related rights they are unable to use for their culturally valuable products and services. The aim of the Network of Multimedia Resource Centres is to call attention to the problem of "orphan works" and to establish a due legal basis providing a secure situation under law for their use.
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The Network of Multimedia Resource Centres puts forward the following considerations on dealing with "orphan works":
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What criteria must be met in order to consider a work "orphaned"? This definition should be unambiguous, and should be legally established.
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An institution intending to use an "orphan work" must show that despite comprehensive searches clearance of copyright and related rights was not possible.
The extent of the searches to be conducted and/or individual checking criteria (due diligence) should be established and made legally binding.
A helpful support for due diligence would be a kind of "coordination office", to be created for the purpose. It would be a repository and resource for all relevant data on "orphan works". Use of "orphan works" without consulting the coordination office would be impermissible. Close cooperation with the relevant rights administration organizations should be sought.
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If no legal clearance of an "orphan work" pursuant to the prescribed criteria has been possible and if the institution wants nonetheless to use it, the procedure should be as follows:
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The institution pays an appropriate fee into a fund (held in escrow). The institution receives in return a non-exclusive right of use.
If right-holders assert their claims within five years, they receive from the fund the relevant fees paid into it, minus any administrative costs. -
In the case of "b" above, details of future use are to be renegotiated with the right-holders, now known.
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If the right-holders do not assert their claims within the stipulated period, the fees paid into the fund revert to the cultural institutions, minus the costs necessary for the administration of the coordination office. After expiration of the deadline no retroactive claims asserted by the right-holders will be allowed.
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For the commercial use of "orphan works", the fees paid into the fund will be used to finance the coordination office and to maintain the audiovisual heritage.
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Claudia Dillmann / Deutsches Filminstitut - DIF
Dr. Beate Engelbrecht / IWF Wissen und Medien gGmbH
Dr. Hans Peter Jäger / Deutsches Rundfunkarchiv
Dr. Paul Klimpel / Deutsche Kinemathek - Museum für Film und Fernsehen
Dr. Dietmar Preißler / Haus der Geschichte der Bundesrepublik Deutschland
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