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Italy: Implementation of EU Legislation on Orphan Works

(Dec. 16, 2014) Italy recently amended its Copyright Law to address the issue of orphan works. On November 25, 2014, Legislative Decree No. 163 of November 10, 2014, Implementation of European Directive 2012/28/EU on Certain Permitted Uses of Orphan Works, became effective. (Decreto Legislativo 10 novembre 2014, n. 163 [D.L. No. 163], GAZETTA UFFICIALE (G. U.) No. 216, Nov, 10, 2014.) With this legislation, Italy is now compliant with European Union directives on orphan works. (Claudio Tamburrino, Anche l’Italia adotta l’opere orfane [Italy, Too, Adopts Orphan Works], PUNTO INFORMATICO (Nov. 13, 2014); Directive, 2012/28/EU, 2012 O.J. (L 299) 5, EURLEX.)

Under Italy’s Copyright Law, a work is considered an orphan when none of the rights holders has been identified or, even if identified, none of them has been located after a diligent search has been carried out according to the law, including research outside of Italy if needed. (Legge 22 aprile 1941, n. 633 [Law No. 633], Protezione del diritto d’autore e di altri diritti connessi al suo esercizio, G. U. No. 166, July 16, 1941, art. 69-quater (1)(1-4).) All works qualified as orphans in another EU Member State under Directive 2012/28/EU are considered to be orphans in Italy as well. (Id. art. 69-quater (1)(11).) Works that are commercialized may not be classified as orphan works. (Id. art. 69-quater (1)(12).)

The Italian Ministry of Cultural Goods and Activities and Tourism maintains an online database of all orphan works available in the country. (Id. art. 69-quater (1)(15).) Protected orphan works under the 1941 Copyright Law, as amended by D.L. No. 163, are those first published or broadcast in an EU Member State. (Id. art. 69-ter (1)(1).)

New Provisions

According to D.L. No. 163, libraries, educational institutions and museums accessible to the public, archives, audiovisual institutions, and public service broadcasters have the right to use orphan works for digitization, indexing, cataloging, preservation, or restoration purposes. (D.L. No. 163, art. 1(1)(a), amending Law No. 633, art. 69-bis 1(1).) The institutions concerned may not profit from any revenues generated in the course of these uses (D. L. No. 163, art. 1(3)); the institutions must ensure that the public has access to orphan works (id. art. 1(1)(b)). They must indicate the name of the respective author or authors or rights holders during the use of orphan works, avoiding any prejudice to the rights of such persons (id. art. 1(4&5)).

Determining Orphan Status

Under the Copyright Law, research on a work to determine whether it qualifies as an orphan must be conducted at the General Public Registry for Protection Works at the Ministry of Cultural Goods and Activities and Tourism for all works. (Law No. 633, art. 69-septies (1)(a).) For published books, the search must be conducted using the following resources (id. art. 69-septies (1)(b)):

• the National Library System;

• national associations of publishers and authors, and literary agents operating in Italy;

• the legal deposit registry;

• the database of the Italian ISBN agency for published books and publishers;

• the WATCH (Writers, Artists and Their Copyright Holders) database;

• the SIAE database (Società Italiana degli Autori e degli Editori –Italian Society of Authors and Publishers) and CLEARedi service (Centro Licenze e Autorizzazioni per le Riproduzioni Editoriali [Center for Licenses and Authorizations for Editorial Reproductions]; and

• the Anagrafe Nazionale Nominativa dei Professori e dei Ricercatori e delle Pubblicazioni Scientifiche (National Register of Registered Professors and Researchers and Scientific Publications, ANPRePS) (see Paola Galimberti,
Un passo verso l’anagrafe nazionale della ricerca (ANPRePS), Return on Academic Research website (Nov. 28, 2013) & OGGETTO: Proposta “Criteri identificanti il carattere scientifico delle pubblicazioni e degli altri prodotti della ricerca” ai sensi art.3-ter, comma 2, l. 9 gennaio 2009, n.1 e successive modificazioni, Italian National University Council website (Oct. 22, 2013).)

These sources may be accessed directly or through integrated research via VIAF (Virtual International Authority Files) or ARROW (Accessible Registries of Rights Information and Orphan Works).) (Law No. 633, art. 69-septies (1)(b)(8).)

D.L. No. 163 also lists other sources for researching rights holders for material published in newspapers, magazines and journals (id. art. 69-septies (1)(c)); visual works, including art objects, photography, illustration, design, architecture, sketches of these works and other materials reproduced in books, magazines, newspapers and magazines or other works (id. art. 69-septies (1)(d)); and audiovisual works (id. art. 69-septies (1)(e)).