With the transposition into Spanish law of the EU directive 2012/28/UE of the European Parliament and Council, through law 21/2014, via which article 37 bis was introduced into the consolidated text of the Intellectual Property Act (“IPA”), and the recent Royal Decree 224/2016, which implements said article, the legal framework is established which regulates works of intellectual property, which have not yet passed into the public domain and the holders of the rights thereto are not identified, or if they are identified it has not been possible to locate them. Said works are known as orphan works.
With the implementation of said legal framework, the lack of regulation in said area is remedied, enabling the divulgation of orphan works on the part of cultural institutions and public broadcasting bodies, such as libraries, learning centres, archives, museums, entities conserving cinematographic and audio heritage and public broadcasting bodies, given that legal security is now guaranteed when using such works.
Among other less relevant questions, with the transposition of the EU directive into Spanish law a special definition has been given to orphan work, with the regulation of their purpose and scope of application, the mutual recognition of the condition of orphan work , the possibility to put an end at any time to the condition of orphan work by the legitimate owner of the intellectual property rights of the work, as well as the authorised use of orphan works and the procedure of finding the author of a determined work, which should be carried out by the corresponding beneficiary (libraries, museums, …) before attributing the work in question with the condition of orphan work.
Some aspects to be noted are that the use of orphan works by beneficiary entities should be without financial gain with a view to achieving the goals related to their public interest mission, in particular the conservation and restoration of the works which figure in their collections and the facilitation of the access thereto for cultural and educational purposes.
Ismael Marina Schneider
Vilá Abogados
For more information, please contact:
1st July 2016
