Spain Approves the Royal Decree that Governs Certain Aspects of Orphan Works
The Royal Decree 224/2016 on the implementation of the legal regime of orphan works (in Spanish) was published in the Official Journal on 11 June. The adoption of this Royal Decree puts an end to the implementation of Directive 2012/28/UE on certain aspects of orphan works.
The main aspects of the Directive had already been implemented in the Act 21/2014 (in Spanish) that introduced a new Art. 37 bis in the Spanish Copyright Act (in Spanish). However, certain aspects of the legal regime of orphan Works needed to be implemented by a regulation. These aspects include the diligent search, the permitted uses and the end of the orphan work status.
In relation to the first aspect, it is worth recalling that, as stated in Art. 2 Royal Decree, a work is considered as orphan “if none of the right holders in that work or phonogram is identified or, even if one or more of them is identified, none is located despite a diligent search for the right holders having been carried out”
As it can be observed, to attribute a work the condition of “orphan” entities that can benefit from this new category of works (beneficiaries) must carry out a diligent search. Being so, the purpose of Art. 4 Royal Decree is to establish the procedure beneficiaries must follow for that diligent search.
The diligent search shall be carried out in the territory of the Member State where the orphan work was first published. It shall be carried out by the beneficiary or by a third person in case the beneficiary does not have enough resources. The procedure consists of two stages.
First, the beneficiary shall carry out a search in the Orphan Works Data Base administered by EUIPO in accordance with Regulation 386/2012.
In case this search does not provide any result, beneficiaries shall at least consult the information resources listed in the Annex to the Royal Decree: legal deposit, the Intellectual Property Registry, the ISSN registry in case of journals… The Royal Decree does not make it clear whether these sources are only to be consulted in Spain or in other Member States as well when the work was first published abroad.
The work will be granted the “orphan work” status once the beneficiary submits the information about the work provided for in Art. 4.7, and the work is registered in the EUIPO Orphan Works Data Base.
As established in Art. 5, beneficiaries shall administer a registry with all their diligent searchs.
This procedure will allow to obtain a closer knowledge of the amount of orphan works pertaining to our cultural patrimony. It will also facilitate the digitisation and release of orphan works to the general public.
In relation to the second aspects of the new Decree, Art. 3 establishes a list of permitted uses by beneficiaries of orphan works: reproduction for digitisation purposes, making available to the public, indexing, cataloguing, preservation and restoration. Such uses are only permitted for non-lucrative purposes. The generation of incomes is only allowed when they are necessary to finance the process of digitisation and making available to the public.
It shall be recalled that the status of orphan work permits to make use of these rights in the territory of any Member State.
Finally, the Royal Decree refers to the end of the orphan work status. This arrives at any moment once the right holder submits an application in accordance with Art. 6. The right holder shall provide enough evidences to demonstrate the ownership of the right. Once the application is filed, the beneficiary shall refrain from making use of the work. In case, the ownership is confirmed, the right holder will be entitled to ask for an equitable compensation for the use made of the orphan work from the moment the work was attributed the status of “orphan” to the time when the application was filed (art. 7).
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