Certain Permitted Uses of Orphan Works Regulations, 2014

L.N. 394 of 2014

COPYRIGHT ACT

(CAP. 415)

Certain Permitted Uses of Orphan Works Regulations, 2014

IN exercise of the powers conferred by article 59 of the

Copyright Act, the Minister for the Economy, Investment and Small

Business has made the following regulations:-

The title of these regulations is Certain Permitted Uses of Citation.

Orphan Works Regulations, 2014.

[Regulation 6(2)]

The sources referred to in Regulation 6(2) include the

following

(1) for published books

(a)

legal deposit, library catalogues and authority files

maintained by libraries and other institutions;

(b) the publishers’ and authors’ associations in the

respective country;

(c)

existing databases and registries, WATCH (Writers,

Artists and their Copyright Holders), the ISBN (International

Standard Book Number) and databases listing books in print;

(d) the databases of the relevant collecting societies, in

particular reproduction rights organisations;

(e)

sources that integrate multiple databases and

registries, including VIAF (Virtual International Authority

Files) and ARROW (Accessible Registries of Rights

Information and Orphan Works);

(2) for newspapers, magazines, journals and periodicals

(a)

the ISSN (International Standard Serial Number) for

periodical publications;

(b) indexes and catalogues from library holdings and

collections;

(c)

legal deposit;

(d) the publishers’ associations and the authors’ and

journalists’ associations in the respective country;

(e)

the databases of relevant collecting societies

including reproduction rights organisations;

(3) for visual works, including fine art, photography,

illustration, design, architecture, sketches of the latter works and

other such works that are contained in books, journals, newspapers

and magazines or other works

(a)

the sources referred to in points (1) and (2);

(b) the databases of the relevant collecting societies, in

particular for visual arts, and including reproduction rights

organisations;

(c)

the databases of picture agencies, where applicable;

(4) for audiovisual works and phonograms

(a)

legal deposit;

(b)

the producers' associations in the respective country;

(c)

databases of film or audio heritage institutions and

national libraries;

(d) databases with relevant standards and identifiers

such as ISAN (International Standard Audiovisual Number) for

audiovisual material, ISWC (International Standard Music

Work Code) for musical works and ISRC (International

Standard Recording Code) for phonograms;

(e)

the databases of the relevant collecting societies, in

particular for authors, performers, phonogram producers and

audiovisual producers;

(f)

credits and other information appearing on the

work’s packaging;

(g) databases of other relevant associations representing

a specific category of rightholders.

€0.72

These regulations transpose Directive 2012/28/EU of the Purpose.

European Parliament and of the Council of 25 October 2012 on

certain permitted uses of orphan works.

In these regulations, unless the context otherwise requires - Interpretation.

"the Act" means the Copyright Act;

"Member State" means Member State of the European Union;

"rightholder" is a person who, according to the Act, owns the

rights in relation to works and phonograms referred to in regulation 4,

in respect of which works, use is permitted in accordance with

regulation 9; and the term "rightholders" shall be construed

accordingly;

"orphan works" means orphan works in terms of regulation 5(1).

All other words, terms and expressions used shall have the same

meaning as is given to them in the Act.

(1) These regulations concern certain uses made of Subject matter

orphan works by publicly accessible libraries, educational and scope.

establishments and museums, as well as by archives, film or audio

heritage institutions and public-service broadcasting organisations,

established in Malta, in order to achieve aims related to their public-

interest missions.

(2) These regulations apply to -

(a)

works published in the form of books, journals,

newspapers, magazines or other writings contained in the

collections of publicly accessible libraries, educational

establishments or museums as well as in the collections of

archives or of film or audio heritage institutions;

(b) cinematographic or audiovisual works and

phonograms contained in the collections of publicly accessible

libraries, educational establishments or museums as well as in

the collections of archives or of film or audio heritage

institutions; and

(c)

cinematographic or audiovisual works and

phonograms produced by public-service broadcasting

organisations up to and including 31 December 2002 and

contained in their archives,

which are protected by copyright or neighbouring rights and which

are first published in a Member State or, in the absence of publication,

first broadcast in a Member State.

(3) These regulations shall also apply to works and

phonograms referred to in sub-regulation (2) which have never been

published or broadcast but which have been made publicly accessible

by the organisations referred to in sub-regulation (1) with the consent

of the rightholders, provided that it is reasonable to assume that the

rightholders would not oppose the uses referred to in regulation 9

Provided that this sub-regulation only applies to works and

phonograms which have been deposited with those organisations

before 29 October 2014.

(4) These regulations shall also apply to works and other

protected subject-matter that are embedded or incorporated in, or

constitute an integral part of, the works or phonograms referred to in

sub-regulations (2) and (3).

(5) These regulations do not interfere with any arrangements

concerning the management of rights in Malta.

(1) A work or a phonogram referred to in regulation

4(2) shall be considered an orphan work if none of the rightholders 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

rightholders having been carried out and recorded in accordance with

regulation 6.

(2) Where in a work or a phonogram referred to in regulation

4(2) there is more than one rightholder, and not all of them have been

identified or, even if identified, located after a diligent search has

been carried out and recorded in accordance with regulation 6, the

work or phonogram may be used in accordance with these regulations

provided that the rightholders that have been identified and located

have, in relation to the rights they hold, authorised the organisations

referred to in regulation 4(1) to carry out the acts of reproduction and

making available to the public accorded by articles 7(1)(a) and

7(1)(e), as well as articles 13(a), 13(e), 15(a) and 15(d) of the Act.

(3) Sub-regulation (2) shall be without prejudice to the rights

in the work or phonogram of rightholders that have been identified

and located.

(4) Regulation 8 shall apply mutatis mutandis to the

rightholders that have not been identified and located in the works

referred to in sub-regulation (2).

(5) These regulations shall be without prejudice to any other

law on anonymous or pseudonymous works.

(1) For the purposes of establishing whether a work or Diligent search.

phonogram is an orphan work, the organisations referred to in

regulation 4(1) shall ensure that a diligent search is carried out in

good faith in respect of each work or other protected subject-matter,

by consulting the appropriate sources for the category of works and

other protected subject-matter in question. The diligent search shall

be carried out prior to the use of the work or phonogram.

(2) The sources to be referred to in the course of the diligent

search referred to in sub-regulation (1), which are appropriate for

each category of works or phonogram, shall include at least the

relevant sources listed in the Schedule

Provided that the Minister responsible for intellectual property

in Malta may prescribe other appropriate sources following

consultation with rightholders and users.

(3) In the case of the works referred to in regulation 4(2)(a)

and phonograms referred to in regulations 4(2)(b) and 4(2)(c), a

diligent search shall be carried out in the Member State of first

publication or, in the absence of publication, first broadcast as

appropriate.

(4) In the case of cinematographic or audiovisual works

referred to in regulations 4(2) b and 4(2)(c), the diligent search must

be carried out in the Member State where the producer has his

headquarters or habitual residence.

(5) In the cases referred to in regulation 4(3), the diligent

search shall be carried out in the Member State where the

organisation that made the work or phonogram publicly accessible

with the consent of the rightholder is established.

(6) If there is evidence to suggest that relevant information on

rightholders is to be found in other countries, sources of information

available in those other countries shall also be consulted.

(7) The organisations referred to in regulation 4(1) shall

maintain records of their diligent searches and these organisations

shall provide the following information to the Department responsible

for intellectual property in Malta

(a)

the results of the diligent searches that the

organisations have carried out and which have led to the

conclusion that a work or a phonogram is considered an orphan

work;

(b) the use that the organisations make of orphan works

in accordance with these regulations;

(c)

any change, pursuant to regulation 8, of the orphan

work status of works and phonograms that the organisations

use;

(d) the relevant contact information of the organisation

concerned.

(8) Upon receiving the information from the organisations

referred to in regulation 4(1), the Department responsible for

intellectual property in Malta shall forward the said information to the

Office for Harmonization in the Internal Market.

(1) A work or phonogram which is considered an

orphan work in Malta according to regulation 5 shall be considered an

orphan work in all Member States and a work or phonogram which is

considered an orphan work in another Member State shall be

considered an orphan work in Malta.

(2) The work or phonogram referred to in sub-regulation (1)

may be used and accessed in accordance with these regulations and in

terms of Directive 2012/28/EU may be used and accessed in all

Member States. This also applies to works and phonograms referred

to in regulation 5(2) in so far as the rights of the non-identified or

non-located rightholders are concerned.

A rightholder in a work or phonogram considered to be an

orphan work may, at any time, put an end to the orphan work status,

only in so far as his rights are concerned.

(1) Notwithstanding the provisions of articles 7(1)(a) Permittedd uses

and 7(1)(e), as well as articles 13(a), 13(e), 15(a) and 15(d) of the of

works.

Act, the organisations referred to in regulation 4(1) shall be permitted

to use orphan works contained in their collections in the following

ways

(a)

by making the orphan work available to the public,

within the meaning of articles 7(1)(e), 13(e) and 15(d) of the

Act;

(b) by acts of reproduction, within the meaning of

articles 7(1)(a), 13(b) and 15(a) of the Act, for the purposes of

digitisation, making available, indexing, cataloguing,

preservation or restoration.

(2) The organisations referred to in regulation 4(1) shall use an

orphan work in accordance with sub-regulation (1) only in order to

achieve aims related to their public-interest missions, in particular the

preservation of, the restoration of, and the provision of cultural and

educational access to, works and phonograms contained in their

collection. The organisations may generate revenues in the course of

such uses, for the exclusive purpose of covering their costs of

digitising orphan works and making them available to the public.

(3) The organisations referred to in regulation 4(1) shall

indicate the name of identified authors and other rightholders in any

use of an orphan work.

(4) These regulations are without prejudice to the freedom of

contract of such organisations in the pursuit of their public-interest

missions, particularly in respect of public-private partnership

agreements.

(5) A fair compensation shall be due to rightholders that put an

end to the orphan work status of their works or other protected

subject-matter, for the use that has been made by the organisations

referred to in regulation 4(1) of such works and other protected

subject-matter in accordance with sub-regulation (1). The level of

compensation shall be agreed upon by the organisation making use of

the work or protected subject matter and the re-appearing rightholder

after having taken into consideration the following circumstances

(a) the non-commercial nature of the use made by the

organisation,

(b) the public-interest mission of the organisation using

the work or the protected subject matter to which the re-

appearing rightholder is claiming a right;

(c)

the possible harm made to the re-appearing

rightholder by the use of the work or the protected subject

matter

Provided that in circumstances where prejudice to the

rightholder is minimal, such as in those cases where there has not

been economic use of the work or protected subject matter for a

reasonable period of time, no compensation shall be due

Provided further that a fair and reasonable compensation is only

due if re-appearing rightholders are able to demonstrate their right to

the work, and the extent of their right.

(6) Where the organisation making use of the work or

protected subject matter and the re-appearing rightholder cannot

reach an agreement as to the level of compensation due by the

organisation to the rightholder, then either party can refer the matter

to the Copyright Board which shall determine the amount of fair

compensation due to the rightholder and order that such amount be

paid after taking in consideration the circumstances referred to in sub-

regulation (5)(a), (b) and (c).

These regulations shall be without prejudice to provisions

concerning, in particular, patent rights, trade marks, design rights,

utility models, the topographies of semi-conductor products, type

faces, conditional access, access to cable of broadcasting services, the

protection of national treasures, legal deposit requirements, laws on

restrictive practices and unfair competition, trade secrets, security,

confidentiality, data protection and privacy, access to public

documents, the law of contract, and rules on the freedom of the press

and freedom of expression in the media.

(1) These regulations shall apply in respect of all works

and phonograms referred to in regulation 4 which are protected by

national legislation in the field of copyright on or after 29 October

2014. (2) These regulations shall apply without prejudice to any acts

concluded and rights acquired before 29 October 2014.