Orphan works in Ukraine are works whose authors have not been identified after a thorough (proper) search, and in case of identification of such authors (including works published anonymously or under a pseudonym), the location of such authors has not been established.
Before granting the orphan status to a work, according to Article 1(1) of the EU Directive, in order to establish whether a work, phonogram, videogram, recorded performance is really an orphan work, a mandatory “thorough search” for the owners of such objects must be carried out. This is the main condition before obtaining the proper status or using this work.
In other words, a diligent search means taking measures to identify the copyright and/or related rights holders and to properly locate them.
A thorough search shall be carried out by the institution in respect of a work, phonogram, videogram and performances recorded therein, which the institution, in case such works acquire orphan status, intends to use in accordance with the terms of the permitted use.
According to part 1 of Article 29. of the Law of Ukraine “On Copyright and Related Rights”, in the current version of 01.01.2023 (hereinafter – the Law), as amended on 15.04. 2023), orphan works are allowed to be used by libraries, museums with open access to visitors, archives or organizations for the preservation of audio and video recordings by means of reproduction methods for the purpose of digitization, indexing, cataloging, preservation or restoration of a copy after taking measures to identify and properly search for authors and other copyright holders, which did not lead to the identification of the relevant copyright holders or the recovery of identified subjects.
According to part 2 of Art. 29 of the Law, the orphan status may be granted to a work published in Ukraine:
– a work published in a book, magazine, newspaper or other written publication contained in the collections of libraries, museums with open access to visitors, in archives or organizations for the preservation of audio and video recordings
– an audiovisual work contained in the collections of libraries, museums with open access to visitors, in archives or organizations for preservation of audio and video recordings.
A work that has acquired the status of an orphan work shall lose this status, and its use in the ways specified above in this Article shall not be permitted, in accordance with the established procedure on the basis of an application containing a reasoned statement that the applicant has economic rights to the work specified in such application, the grounds for the emergence of rights of the copyright holder(s) to this work and their validity period, as well as the contact details of the applicant.
A work that has lost the status of an orphan work shall be protected in accordance with the Law.
The procedure and conditions for the permitted use of orphan works, including the procedure and conditions for taking measures to identify and properly search for the relevant copyright holders, acquiring and losing the status of an orphan work, and maintaining a register of orphan works, shall be determined by the Cabinet of Ministers of Ukraine.
How is a thorough search carried out?
A thorough search is carried out by publishing an announcement on the search for copyright and/or related rights holders on the official website of the National Intellectual Property Authority – the state organization “Ukrainian National Office of Intellectual Property and Innovations” (IP Office) and in the bulletin, as well as by searching the following sources:
1) for works published in a book, magazine, newspaper or other written (printed) publication:
– reference and search apparatus of national and state libraries;
– sources of the state bibliography published by the State Scientific Institution “Ivan Fedorov Book Chamber of Ukraine”;
– WATCH database (“Writers, Artists and Holders of Their Copyrights”);
– ISBN (International Standard Book Number) database – for books;
– ISSN database (International Standard Serial Number) – for periodicals;
– VIAF database (Virtual International Authority File);
– the EUIPO Orphan Works Database of the European Union Intellectual Property Office;
– data from the State Register of Certificates of Copyright Registration for a Work and the State Register of Contracts Concerning the Author’s Right to a Work;
– data from the Customs Register of Intellectual Property Rights;
2) for audiovisual works, phonograms, videograms and performances recorded therein:
– reference and search apparatus of the Central State Audiovisual and Electronic Archive;
– data of the State Register of Films;
– data of the State Register of Certificates of Copyright Registration for a Work and the State Register of Contracts Concerning the Author’s Right to a Work;
– EUIPO Orphan Works Database of the European Union Intellectual Property Office (EUIPO Orphan Works Database);
– data from the Customs Register of Intellectual Property Rights.
Powers of the IP Office to Maintain the Register of Orphan Works
Starting from March 04, 2024, the following documents can be found and downloaded on the website of the State System of Intellectual Property Legal Protection in the section “Copyright” in the subsection “Acquisition and Loss of Orphan Works, Phonograms, Videograms and Performances Fixed in Them”:
1) Application for search of copyright and/or related rights holders;
2) Application for granting orphan status to a work, phonogram, videogram and performances fixed therein;
3) Application for the loss of orphan status by a work, phonogram, videogram and performances recorded therein;
4) Procedure for issuing a certificate from the register of orphan works and the content of the certificate.
This subsection will also publish: announcements on the search for copyright and/or related rights holders and information on the acquisition and loss of orphan status by a work, phonogram, videogram and performances recorded in them.
Thus, the IR Office exercises the authority to maintain a register of orphan works and acts in accordance with the Resolution of the Cabinet of Ministers of Ukraine No. 1312 dated December 15, 2023 “On Approval of the Procedure for Acquiring and Losing the Status of Orphan Works, Phonograms, Videograms and Performances Fixed in Them, Conditions of Their Permitted Use and Keeping the Register” (hereinafter – the Procedure).
Thus,
1) in order to publish the relevant announcement, an institution intending to obtain orphan works status for the respective works must submit to the IP Office an application for search of copyright and/or related rights holders (hereinafter – the application for search) in the appropriate form, which has now been approved and posted on the website of the State System of Intellectual Property Legal Protection.
A wanted notice may relate to a single work, phonogram, videogram and performances recorded therein or several related (used) copyright and/or related rights objects, shall be drawn up in the state language and submitted in one copy. The respective institution is responsible for the accuracy of the information provided in the request for tracing.
The IP Office considers the tracing request within one month from the date of its receipt and returns it to the institution in case of its non-compliance with the form approved by the IP Office and/or the requirements of the Procedure.
If the application for tracing complies with the form approved by the IP Office and the requirements of the Procedure, the IP Office publishes the tracing announcement on its official website and in the bulletin free of charge.
In addition to diligent search measures, the institution also has the right to take other actions to identify copyright and/or related rights holders and their location (place of residence) in accordance with the law, the results of which shall be submitted to the IP Office for consideration of the application for granting orphan status to a work, phonogram, videogram and performances recorded therein.
2) in order to obtain orphan status for the respective works, the institution may apply to the IP Office for the respective status if, as a result of a thorough search, the respective copyright holder and/or related rights holder has not been identified, and if they have been identified, their location (place of residence) has not been established.
The application for status shall be submitted in the appropriate form and may relate to one work, phonogram, videogram and performances recorded therein or several related (used) copyright and/or related rights objects.
Based on the results of consideration of the application for status and the documents attached thereto, the IP Office shall decide to enter into the Register information about the orphan work, phonogram, videogram and performances recorded therein or to refuse to enter the said information into the Register.
A work, phonogram, videogram and performances fixed therein shall acquire the status of orphan works from the date of entering the data on such object into the Register by the IP Office.
3) in order to cancel the orphan work status, a copyright holder and/or a holder of related rights, as well as a person who, in accordance with the Law of Ukraine “On Copyright and Related Rights”, has the right to use a copyright or related rights object (hereinafter referred to as the applicant), may file an application to the IP Office for the loss of orphan status of a work, phonogram, videogram and performances recorded therein (hereinafter referred to as the application for loss of status).
The application for the loss of status shall be submitted in the form approved by the IP Office and shall be submitted to the IP Office with simultaneous sending of a copy to the institution that filed the application for the status to the address indicated in the register.
The application for loss of status may concern one work, phonogram, videogram and performances recorded therein or several related (used) copyright and/or related rights objects.
The IP Office shall examine the application for revocation of status and the documents attached thereto for compliance with the requirements of the Procedure within one month from the date of receipt. In case of non-compliance of the application for cancellation of status and the documents attached thereto with the specified requirements, the IP Office shall notify the applicant thereof in writing.
The IP office then considers the application for revocation of status and the documents attached thereto within a period not exceeding 60 calendar days from the date of receipt of the application for revocation of status by the National Intellectual Property Authority.
Within five business days from the date of receipt of a duly executed application for loss of status, the IP Office shall notify the institution in writing of its receipt, and the relevant institution shall have the right to submit substantiated objections to the application for loss of status within one month from the date of receipt of the IP Office’s notification.
Based on the results of consideration of the application for loss of status and the documents attached thereto, the IP Office shall decide to enter into the Register the information on the loss of orphan status of a work, phonogram, videogram and performances recorded therein or to refuse to enter the said information into the Register.
The IP Office decides to refuse to enter into the register information on the loss of orphan status of a work, phonogram, videogram and their recorded performances if the submitted application for loss of status and the documents attached thereto do not meet the requirements of the Procedure.
According to Liubov Maydanyk, Head of the Department for Development of Copyright and Related Rights at the IP Office: “Orphan works balance the socially oriented activities of cultural heritage institutions in disseminating works to the public with copyright protection.”
Thus, the value of orphan works cannot be underestimated and manifests itself in several ways:
Cultural heritage: many orphan works are part of the national or world cultural heritage, they reflect unique aspects of language, traditions, rituals and other aspects of culture that may be lost without their preservation.
Research value: orphan works are an object of research for literary critics, historians, anthropologists, and other scholars, they help to reveal and understand the cultural, historical, and social contexts of a particular time and place.
Creative potential: orphan works can become a starting point for new creative interpretations, inspiring contemporary writers, artists and other creative personalities to create new works that reflect and develop the heritage of past generations.
Intellectual property: Recognition of an orphan work allows for access to it by the general public and promotes its preservation and use for educational, cultural and other purposes.
application / copyright / intellectual property / IP office / registry / thorough search / оrphan works
