Diligent Search Manual

 – Italian translation is forthcoming.

 – Nederlandse vertaling

DiligentSearch.eu is a platform that guides you through the diligent search process as prescribed the EU Orphan Works Directive and its national implementations.

Please note that the platform is currently in its beta phase. This means that functionality and working of the tool can change.

1. Introduction

This manual provides information for common users on conducting a diligent search to find right holders of potential orphan works via the tool on diligentsearch.eu. The tool is designed to guide users through the diligent search process for literary, audiovisual and musical works located in EU countries. To this end, the manual briefly clarifies when and why you as a user of cultural content may generally be confronted with copyright law (par. 2). The more specific concepts of ‘orphan work’ (par. 3) and ‘diligent search’ (par. 4) are characterized thereafter. Next, the search process is briefly explained (par. 5), followed by an instruction of the use of the tool (par. 6). A selection of copyright concepts that can come up during the search is further defined (par. 7). The manual concludes by indicating the steps that follow the search if an orphan has been identified, namely, registering the work as such (par. 8) and its permitted uses (par. 9). Further resources regarding copyright are listed in par. 10.

2. Why a search? The relevance of copyright law

The use of artistic, literary and scientific works is governed by copyright law (more on the definition of ‘work’ from a copyright perspective can be found under 7. Copyright concepts relevant to the search), which establishes a system of exclusive rights and exceptions. The exclusive rights generally include reproduction, making available and distribution; check for the copyright law of your country how the rights are defined exactly, and thus, which acts are reserved to the right holder. Accordingly, the rights grant right holders a temporary monopoly over the use of their works. Your use of a work consequently requires prior right holder permission, unless:

  • A work is not or no longer protected, due to one of the inherent limitations in copyright law. For instance, as copyright law is limited in duration, the term of protection may have expired; or the work was not protected by copyright in the first place, given that certain categories of works (such as texts of administrative or legal nature) may be subject to a special regime in your country;
  • A statutory exception applies, thus allowing for certain unauthorized uses for the benefit of various societal goals.

The solution provided in the Orphan Works Directive is an example of a statutory exception: EU Member States must introduce an exception to the rights of reproduction and making available to the public to enable specified cultural heritage institutions to use orphan works in their collections in furtherance of their public-interest missions in the sphere of learning and (long-term) culture dissemination. The permitted uses are described under 9. Permitted uses of orphan works. The manual first turns to the two main concepts that are prerequisites for such uses: ‘orphan work and ‘diligent search’.

3. What is an orphan work?

Orphan works can be all kinds of works which are part of the (digital) collections of cultural heritage institutions, from books and newspaper articles to films and phonograms. A common denominator is that the works are still protected under copyright, but their authors or other right holders are not known or cannot be found (see for the legal definition Article 2 of the Orphan Works Directive). Thus, they cannot be contacted to obtain permission for the use of their works, making the works ‘orphans’. Yet, uses of orphan works, including their digitization and online display, are still legally possible provided that a so-called ‘diligent search for the right holders has been carried out and recorded. As a user, you have to establish that the right holder is indeed non-locatable despite efforts in this regard. In other words, the orphan works status of the works in question must be determined, and this is where the diligent search comes in.

4. What is a diligent search?

The ‘diligent search’ concept is central to the orphan works regulation: the search is an instrument for clearing the rights of works in cultural heritage institutions’ collections prior to their use. In principle, Member States may determine that the search is to be conducted by the institutions referred to in the Orphan Works Directive – namely certain cultural heritage institutions – or by other organizations (see Article 1(1) of the Directive for the definition of the beneficiary institutions). The tool on diligentsearch.eu holds the proposition that the search can be carried out by anyone, including common users: the aim is to facilitate the process of rights clearance for European cultural institutions.

As to the scope of the ‘diligent search’, the concept as such is not defined, but the directive states that the appropriate sources for each work must be consulted (see for more on this: 5. Diligent search: the process). Note that jurisdictions have interpreted the term ‘diligent’ in different ways; check the Report on the Requirements for Diligent Search in 20 European Countries to see how the Directive has been implemented in your country regarding the conditions for carrying out a diligent search. The conditions to designate a search as ‘diligent’ may take the form of extensive guidelines, listing specific sources that must be consulted for each work type; or Member States may have chosen to only provide for general categories of sources to be consulted. In addition to being aware that the requirements for the search as well as the sources to consult may vary per jurisdiction, you may find that not all sources are freely available online. This will impact the reliability and comprehensiveness of your search. The search process is generally described in the next section.

5. Diligent search: the process

As previously noted, the diligent search process stems from the Orphan Work Directive’s provision that Member States must determine the sources to be consulted for each category of work. This should help achieve the objective of the diligent search: to obtain contact details or other information that enables the identification and location of the right holder. In theory, each search effort will start by consulting the sources that are closest to the right holder, working towards sources that are further removed. Below, this process and the relevant questions you may encounter are briefly concretized for three categories of works: written works, audiovisual works and phonograms (see for a characterization of these categories under 7. Copyright concepts relevant to the search).

Note that in practice, the starting point of a search will depend on the information that can be gathered from the work in question. For example, a report describing the diligent search process for parts of scrapbooks remarks that the cuttings may be decontextualized  or partial, but also that they might contain information on the creator, source of publication, country of origin etc. (see K. Patterson, R. Deazley & V. Stobo, ‘Diligent Search in Context and Practice’, 2016). In some cases, the question is whether the pieces involved are even copyright protected given their small size. Apart from this specific example, the section now turns to the general search process as incorporated in the search tool. Again, slight variations between jurisdictions are possible as to how the covered works are defined.

Written works

For the purpose of the orphan works exception, ‘written works’ include all works published (or otherwise made accessible) in the form of books, journals, newspapers, magazines or other writings. For this category of works, it must first be determined if the work has been published. If this is the case, the next step is to search for contact details of the publisher. If this is not the case or the publisher is unknown, you could assess whether the author is indicated on the work. One step further, the written work might contain images, the artist of which could be tracked.

Your diligent search consists in searching the contact details of the identified potential right holders (publisher, author or artist of the embedded work), by consulting the appropriate sourcesFor a general guidance on the sources which should be consulted, you can turn to the Annex to the Directive. Each Member State has its own country-specific list of sources, which can be consulted and accessed directly from our website. For further information on guidelines and standards available in your country, you can consult the Report on the Requirements for Diligent Search in 20 European Countries. If you are carrying out your diligent search in the UK, please consult the Orphan Works diligent search Guidance for applicants available from the website of the Intellectual Property Office.

Audiovisual works

For audiovisual works, a first question is whether the work was made by a broadcaster. If this question is answered affirmatively, you can search for details on this broadcaster. If the work was made by a public service broadcaster, the orphan works exception only applies if the work was made before 1 January 2003.

If the work was not made by a broadcaster, it might be a film, i.e. a cinematographic work. If this is the case, a distinction is made between published and unpublished cinematographic works. For published works, the relevant parties to identify are the distributor, the producer, the director, the scriptwriter, the dialogue’s author or the film music’s composer respectively.

For unpublished works, or for works that are not a film, you should still search for contact details of the producer.

The Annex to the Directive defines possible sources to consult regarding audiovisual works as well, such as producers’ associations in your country and other databases. Again, Member States have their own country-specific list of sources for audiovisual works, and the UK has specific Guidelines to be consulted. 

Phonograms

As to phonograms or sound recordings, the questions follow a similar pattern as described for audiovisual works. Here too, you first assess whether the work was made by a broadcaster. If the work is not made by a broadcaster, other parties to search for are the content publisher, the sound recording producer, the performer, or, if the recording includes music and/or text, the composer or the lyricist, respectively. In each case, an additional possibility would be to examine whether the work indicates the name of another author

To form an idea of the sources to consult, you can once more turn to the Annex to the Directive or to the national list of sources based on it, which likely concern producers’ associations in your country and other databases.

After this substantive explanation of the search process in theory, the manual now turns to a practical instruction on how to use the tool on diligentsearch.eu.

6. Using the tool

The tool guides you through a series of questions that allows you to determine the orphan works status of a given work. The tool starts by you selecting the country that you want to do your search in and the language that you want the questions to appear in. The choice of the country is important, as the diligent search must be carried out in the Member State of first publication or first broadcast of the work or, in case of audiovisual works, in the Member State where the producer has its headquarters or habitual residence. If the work is unpublished, then choose the country in which the cultural institution that makes available the work resides (see Art. 3(3) of the Directive). Please note that if, during your diligent search, evidence emerge that a right holder might be found in another country, your search should extend to that country too.

By clicking on the ‘information’ buttons you can get more information about the questions or links to additional resources.

You can stop in the middle of a diligent search and get back to it late by clicking ‘save‘ in the lower right of the tool; your search will be stored in our database. We generate an unique identifier that you can use to get back to your diligent search. This is presented in the top of the tool. Copy this identifier to get back to your search.

Once you’ve saved your search you can also publicly share this identifier with others to collaboratively work on a search. Please note that only one person can work on a search at a given time.

The Get PDF button in the lower left of the tool allows you to download a pdf of your current search. Upon completion of the diligent search process this can be used as a search report that you can send to your local authority.

Please note that changing your answer can result in the removal of subsequent answer as that information can become obsolete.

7. Copyright concepts relevant to the search

A number of terms recur during the search, such as ‘work’ and ‘right holder’. They are briefly typified below.

‘Work’

When speaking of ‘works’ in the legal sense, this term denotes subject matter in the literary, scientific and artistic domain. Examples are books and other writings, musical compositions with or without words, cinematographic works, drawings, paintings, photographic works and maps. Translations or other alterations of such works may be protected as original works as well. The mode of expression is irrelevant, as long as the specific expressions are sufficiently original. The standard of originality may differ per jurisdiction. National particularities may also pertain to the extent of protection granted to official texts, works of applied art and industrial designs and models.

Some classes of subject matter are closely related to that of copyrighted works, but nevertheless deemed outside the literary or artistic sphere. Examples are phonograms, broadcasts and performances, which are instead the subject matter of neighboring rights. Countries sometimes treat both types of subject matter in a similar way; check which rules apply in your jurisdiction.

The Diligent Search platform covers subject matter in both the copyright and neighboring rights realm under the specific headings of written works, audiovisual works and phonograms. Some examples have been given above. With regard to written works, a further distinction can be made between published and unpublished works, depending on whether a work has been provided to the public somehow, in tangible or intangible form, either for sale or for free. With regard to audiovisual works and phonograms, they encompass a recording of sound and vision, and a fixation of sounds only, respectively. It should be noted that audiovisual works and phonograms can be produced by public-service broadcasting organizations. The question of who qualifies as the right holder of a work is briefly addressed next.

‘Right holder’

Right holder is an umbrella term for the array of people or entities that can hold the exclusive rights in a work. Initially, the natural person who has created the work and whose name appears on it can be assumed to be the right holder, unless initial authorship is allocated to another entity by a legal fiction as may be the case with works made under employment. However, the exclusive rights can (and usually are) transferred to third parties or inherited by the successors. As the latter scenario makes clear, the ‘right holder’ does not have to coincide with the person of the ‘creator’, for instance when an author assigns his or her rights to the publisher. Furthermore, a search for the right holder may be complicated by the fact that one work may have multiple right holders in case of joint authorship. Once more, the issue of authorship is construed differently per country.

Lastly, a distinction must be made between ownership and authorship: if an exemplar of a work is sold, this does not imply a transfer of rights in the work as such. For example, the fact that a cultural institution ‘owns’ a manuscript of a work does not imply any ownership of the rights in the work.

8. Registering a work as an orphan

A diligent search can result in the finding that a work is indeed an orphan. In that case, the work must be registered as such with the competent national authorities. The Directive requires that the cultural heritage institutions who are the beneficiaries of the orphan works regime record their diligent searches and provide information on the result of the search and the intended use. Information on the work and intended uses must be registered by the beneficiary institution in the Orphan Works Database at the European Intellectual Property Office.

9. Permitted uses of orphan works

Once the orphan works status of a work has been established and registered, and it has become clear that no prior permission can be obtained for the use of that work, the directive nevertheless poses further conditions to the use (see Article 6 of the Orphan Works Directive). First, only the uses made by certain beneficiaries are permitted, namely cultural heritage institutions. Second, the uses are specified as:

  • Making the orphan work available to the public; and
  • Reproduction for the purpose of digitization, making available, indexing, cataloguing, preservation or restoration.

In both cases, the uses must serve aims related to the institutions’ public interest missions, notably preservation and restoration of works from their collections, and the provision of cultural and educational access. Accordingly, the uses may only yield revenues insofar this covers the costs for the digitization and making available. 

10. Further resources

Public Domain Calculator. Useful tool to help determining whether a work is in copyright or in public domain in a given jurisdiction.

Copyright Cortex. Online resource dedicated to copyright and digital cultural heritage, with information and expert commentaries for libraries, archives, museums and other memory institutions.

Copyright User.  Online resource aimed at making UK copyright law accessible to creators, media professionals, entrepreneurs, students, and members of the public.