CERTAIN PERMITTEDE USES OF ORPHAN WORKS REGULATIONS

SUBSIDIARY LEGISLATION 415.05

CERTAIN PERMITTEDE USES

OF ORPHAN WORKS REGULATIONS

7th November, 2014

LEGAL NOTICE 394 of 2014.

The title of these regulations is Certain Permitted Uses of

Orphan Works Regulations.

[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;

CERTAIN PERMITTED USES OF ORPHAN WORKS

(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

CERTAIN PERMITTED USES OF ORPHAN WORKS

specific category of rightholders.

These regulations transpose Directive 2012/28/EU of the

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 -

"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 orphan

works by publicly accessible libraries, educational establishments

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

instit utio ns and publ ic-serv ice broadcastin g organi sat ions,

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 publi shed 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

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 i n Ma lta may prescribe ot he r ap prop riat e sou rc es

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

se a r c h sh al l b e c a r r i ed o u t i n t h e M e m b e r St a t e w h er e t h e

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

s ha l l pr o vi de t he fo l lo w i ng i nf or m a t io n to t he D e pa rt m e nt

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) and

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

C o py r i gh t B oa rd w h i c h s h a l l d e t e r m i ne t h e a m o un t o f f a ir

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.