Definition of Orphan works
"Orphan" works are phonograms or audio-visual fixations which have already been published for the first time (Art. 9 para. 3 CopA) and whose author is unknown or it is not possible to contact. The work must be included in an archive of an institutional or broadcasting organization.
Use of Orphan works
The use of orphan works is an exception to copyright foreseen by art. 22b CopA.
The rights required to exploit phonograms or audio-visual fixations may only be asserted by the authorised collective rights management organisations if:
- exploitation relates to publicly accessible archive collections or archived works of broadcasting organisations;
- the rights holders are unknown or cannot be found;
- the phonograms or audio-visual fixations to be exploited were produced or reproduced in Switzerland at least ten years ago.
The users are required to report the phonograms or audio-visual fixations containing orphan works to the collective rights management organisations.
Without a specific rule, the user would have to take the risk of using a work without knowing the author or without being able to contact him. In case the author reappears or decides to claim his copyrights, not only he could exercise a civil law action for pecuniary exploitation, but could also fill a criminal lawsuit against the user.
Conditions for using Orphan works
Article. 22b CopA takes this situation into consideration and offers the possibility to use orphan works, but only under certain cumulative conditions, which are:
not any work is conceived to be exploited under this exception, the work must be materialized on an audio or audiovisual medium. For example a choreography of a show -unless of course if this choreography has not been fixed on an audio or audiovisual support- is not conceived to be used under this exception;
the exploitation must be related to works included only in archives that are accessible to the public. Institutions keeping such archives could be libraries, documentation centers, scientific institutes, educational institutions, museums and archives or archives of broadcasting organizations. The notion of a broadcasting organization is referred to art. 2 (d) RTVA (cf. reference to this law text is made from art. 22a CopA): "broadcaster means the natural or legal person bearing responsibility for the creation of programs or for the compilation thereof into a program service ". It is not allowed to exploit orphan works with are not stored inside such institutional or broadcasting organization archives. For example orphan work simply found browsing the Internet, which do not have any relation to such archives, are not covered by this exception;
in order to be considered as an orphan work, the work does not have a known or available copyright holder. To come to this conclusion, the user must have carried out some research. The extent of the research is appreciable on the basis of the principle of good faith and must be adapted to the circumstances. Obviously, it is important for this purpose to guarantee proof of these researches.
in order to exploit an orphan work, the phonograms or audio-visual fixations intended for use must have been created or reproduced in Switzerland at least ten years beforehand;
Finally if the user has identified an orphan work satisfying the above-mentioned conditions, before being allowed to use the work, he has to notify the existence of the orphan work to the collecting societies, which will issue an authorization of use, in principle upon payment of a compensation (Art. 22b para. 2 CopA).
If these five cumulative conditions are fulfilled, the exploitation of an orphan work is possible and licit even without the consent of the copyright holder.