By: Dr. Ágnes Dudás
How can be a work orphan – the definition of orphan works
“An orphan work is a work protected by copyright but the current owner is unknown or untraceable by diligent search. The current owner of the copyright might be the author or other creator, some other first owner if the rights (such as the author’s employer - when applicable) or a publisher) or any right holder who is presumed to be the right holder according to the legislation or contractual agreement or any successor of the first owner” (The European Digital Libraries Initative Sector-Specific Guidelines on due deligence criteria for orphan works – Joint Report 3. p).
It is easy to find numerous examples of works of this kind: documentaries, commercials, newsreels, educational films (particularly the ones filmed before the Second World War) and commercially produced films made by European production companies which have subsequently gone out of business or have transferred their rights to other entities (EUROPEAN DIGITAL LIBRARIES AUDIOVISUAL WORKING GROUP Orphan Works sector –specific guidelines for the audiovisual sector Chairs Tom Rivers (ACT) / Gabrielle Claes – ACE).
The Commission suggested in its recommendation on 24 August 2006 (2006/585/EC, OJ 31/08/2006, L 236/28) for its Member States “improve conditions for digitisation of, and online accessibility to, cultural material by creating mechanisms to facilitate the use of orphan works, following consultation of interested parties” (Ibid, 6[a]). Efforts on the European level are devoted to give guidance to national measures to implement the recommendation (Joint Report 2.p.).
However, there is only one country at the moment that has actually made a progress in order to comply with the recommendations regarding the orphan works of the European Union. This country is Hungary.
Principal topics of the Hungarian regulation
Articles 57/A-D of Act No. LXXVI. of 1999 on Copyright (hereinafter referred to as Copyright Act) and Decree 100/2009. (V. 8.) of the Government detail the rules relate to the licensing of certain use of orphan works (hereinafter referred to as Orphan Decree).
First Step – do what you can
It goes just like in the real life: should you find a child, first you have to try to locate the parents. If you find a work and you would like to use it, but don’t know the author or the copyright holder (hereinafter referred to as author) you have to look for it everywhere ( „In the application the applicant shall include and he shall attach all the proofs, which certify that for the conclusion of the licensing agreement the applicant has taken the appropriate measures in a manner that are deemed reasonable under the given circumstances and with regard to the concerned type of work and mode of use to quest the author and the quest of the author is unsuccessful.” Orphan Decree 2.§ (2) ),
you have to take “the appropriate measures in a manner that are deemed reasonable under the given circumstances, and the quest of the author is unsuccessful” (Copyright Act 57/A§ ). It means at least you have to
- “search in the database edited upon the voluntary register of works of the Hungarian Patent Office (hereinafter referred to as HPO), search in the databases of the concerned organizations registered in Hungary and performing collective management of rights, also in respect of the requested mode of use, search in databases available in the Internet, search in databases suitable to find the residence of the authors and search in databases of collections by the type of works, available for the public;
request for information from the organizations performing the usual publication by type of works, from persons performing an other use of the work, from other authors of the work who are known and can be found, as well as from the organizations performing official functions in connection with the type of work;
advertisement in national daily newspapers” (Orphan Decree 3.§).
In case of works, where it can be deemed that the first publication of the work was not in Hungary the measures shall be taken also in the country where the work was first published if it does not come up against disproportionate difficulties (Orphan Decree 3.§).
Second Step – Write an application
So, you couldn’t find the parents neither in the house, nor on the street, nor in the forest, and you still have a crying child there. You go to the police station and you fill out a bunch of application forms… Despite having done your best, you still couldn’t find the author, you go to the HPO and write an application. “The application for granting the license of use shall include the information suitable to identify the work and – if possible – the author, in case of more authors to identify all authors, in addition the mode, the extent, the planned duration of use and any other circumstances which are necessary to determine the fee of the license of use. In the application for granting the license of use it shall be indicated whether the purpose of use is – directly or indirectly – to gain revenue or increase revenue” (Orphan Decree 2.§ ).
Third Step – Pay the price
This is the bit which you don’t have to do in case you find a child. However, if you intend to obtain a license for a use of an orphan work, first you have to pay a service fee of 102,500 HUF (~380 EUR; it could be cheaper in special cases).
Having paid the service fee, you also have to pay for the determination of a remuneration, which is calculated by HPO based on the method and extent of use. The remuneration shall be paid after the identification of the author or his or her residence, if it does not serve to generate or increase income in any way or form; if it serves to generate or increase income in any way or form, the remuneration shall be deposited at the HPO. The deposition of the remuneration is the condition of the commencement of use.
Fourth Step - Wait
It takes time for the HPO to finish the administrative work, nevertheless there is a sixty work day time limit for the administration process.
In the ruling on the withdrawal of the license of use the HPO decides on the proportionate fees of the use that may be performed in the period till the person or the residence of the author becomes known and till one year from this date but not later than the lapse of the license and – in case it is deposited – if it is necessary on the reimbursement of the difference between the fee deposited and determined in the license of use and the remuneration determined by the HPO in the ruling on the withdrawal.
The license is valid for up to 5 years, and within the territory of Hungary, it is not exclusive, not transferable, and does not entitle to issue a further license or to adapt the work.
Fifth Step - Surprise
If the parents finally show up, you have to give the child back. In case the personality or the residence of the author gets revealed, the HPO at the request of the user or the author, withdraws with the effect commences on the date of identification of the author or residence, but the activity may be carried on to the extent of the identification of the personality and the residence of the author, until the remaining period based on the license, but maximum for one year form the date of the identification of the personality of the author or residence. This provisions must be applied appropriately, if considerable preparations have been made for the use until the identification of the personality of the author or residence, in this case the use shall be commenced and carried on to the extent of the preparation that exists at the time the identification of the personality of the author or residence.
Frau Dr. Ágnes Dudás ist Rechtsanwältin in Budapest (http://drdudas.hu/deutsch) und spezialisiert auf Rechtsfragen der Freien Software.