Orphan works

Orphan work

The Act No. LXXVI of 1999 on Copyright (Copyright Act) and the Government Decree No. 138/2014. (IV.30.) on the detailed provisions of the use of orphan works (Orphan Work Decree) determines the provisions for licensing the usage of such copyright protected works and subject matters where the author is not known or cannot be located or contacted (orphan works), in spite of the fact that a diligent search was carried out but with no success. 

The orphan works shall be available to use:

• upon request of any user, following the licensing procedure determining the remuneration in the decision of the HIPO (Hungarian Intellectual Property Office);
• freely and free of remuneration by certain beneficiary organisations in accordance with the provisions of the Copyright Act and the Orphan Work Decree.

1. The official licensing of the use of orphan works

The application for permitted use of orphan works shall be submitted to the HIPO on the special form provided for this purpose.

The administration fee of the proceeding is

• 30.000,- HUF in case the permitted use is not intended directly or even indirectly to earn or to increase income;
• 92.500,- HUF in case the permitted use is intended directly or even indirectly to earn or to increase income.

The application form may be submitted by electronic means through the customer portal. Different special forms are available for the licensing of use of literary works, visual creations, audiovisual works andrecords and of other types of copyright protected works. The electronic application forms are available for download in PDF and RTF format from the menu bar on the right side.

In accordance with Article 41/A. (9) of the Copyright Act, the HIPO cannot grant licence for the use of works falling under collective management of rights. About the rights falling under the collective management and the types of works concerned, please find further information here: Copyright and related rights/ Basics/ Collective management of rights or http://www.sztnh.gov.hu/en/copyrights-and-related-rights/basics/collective-management-of-copyright-and-related-rights

2. The use of orphan works by certain beneficiary organisations

As a result of the transposition of Directive 2012/28/EU of the European Parliament and of the Council on certain permitted uses of orphan works, the Copyright Act provides the opportunity for  certain beneficiary organisations to use orphan works contained in their collections or archieves for certain purposes from the 29^th of October 2014 onwards. The prerequisite of such use is that a diligent search shall be carried out with good faith, with taking all necessary measures that can be expected in the given situation in order to find the rightholders remained unsuccessful,   and certain information in regard to the work concerned shall be recorded in the unified online database maintained by the European Union. The orphan works recorded in the database and to being accessible in the collection of such organisation can be used freely by any beneficiary organisation, regardless who was the one that carried out the search for the rightholders.

About the details on the beneficiary organizations, the types of works accessible, the possible ways of use of such works, the procedue of the search for the rightholders and the European single online database, please find further information under the title of “Frequently asked questions in regard to the use of orphan works by beneficiary organisations”.

The European single online database is available here: https://oami.europa.eu/orphanworks/

You can register here: https://oami.europa.eu/orphanworks/#register

In accordance with Article 41/A. (9) of the Copyright Act, the HIPO cannot grant licence for the use of works falling under collective management of rights. Please find the  list of rights falling under the collective management and the list of works concerned on the following link: Copyright and related rights/ Basics/ Collective management of rights or http://www.sztnh.gov.hu/en/copyrights-and-related-rights/basics/collective-management-of-copyright-and-related-rights

In case you need more information, please contact us:

Hungarian Intellectual Property Office

Copyright Department

Address: HU 1081 Budapest, II. János Pál pápa square. 7.

E-mail: szjftitkarsag [169] hipo [961] gov [961] hu

“Frequently asked questions in regard to the use of orphan works by beneficiary organisations”

Which organisations can be regarded as a “beneficiary organisations”?

The following organisations shall be regarded as beneficiary ones: publicly accessible libraries, educational establishments and museums, as well as archives, film or audio heritage institutions and public-service broadcasting organisations.

How can orphan works be used by a beneficiary organisations?

The orphan works can be used by beneficiary organisations freely in order to to fulfil their public-interest mission, in the following ways:

1. by making the orphan work available to the public online [to be made publicly accessible  in a way that the members of the public can choose the place and the date of access individually]
2. by acts of reproduction [to be digitalised for the purpose of making publicly accessible  in accordance with point a), or indexing, cataloguing, preservation or restoration].

What types of works can be used under the above specific rules of free use exercised by beneficiary organisations?

These rules of specific ways of “free use” exercised by beneficiary organisations apply to books, journals, newspapers, magazines or other works published in written form, as well as to cinematographic or audiovisual works and to phonograms. These provisions apply, furthermore, to the cinematographic or audiovisual works and phonograms produced by public-service broadcasting organisations by 31^st of December 2002 (the day of the 31^st of December included) and contained in their archives.

What types of works can NOT be used as orphan works, according to the specific rules?  

It is important to emphasize, that according to the above rules, a work can only be used as an orphan work when no other ways of legitimate use based on the rightholders license is possible. Given that in these cases the rightholders are unidentified or their location is unknown, therefore the use could not be licensed in any other way. The provisions of free use do not apply when the right of reproduction or making available online shall be licensed by the collecting management organisations. In these cases the licence shall be granted by the competent collective management organisations and there is no possibility to use them freely. (About the collecting management organisations  and the types of works which are represented by them,  please find further information here: Copyrights and related right/ Basics/ Collective management of rights or on this link: /en/copyrights-and-related-rights/basics/collective-management-of-copyright-and-related-rights)

Which steps shall a beneficiary organisation follow in the procedure of licesing the use of orphan works?

The first step, as prerequisite of starting the procedure, is a diligent search with good faith to be carried out by the beneficiary organisation in order to reveal the identity and the location of the rightholder(s). During the diligent search for the rightholder the sources of information specified in the Orphan Work Decree shall be used [e.g. in case of booksinter alia searches of records of legal deposits and of the database of the ISBN (International Standard Book Number) identification numbers are requested]. The use of the sources of information listed in the Orphan Work Decree specified for each type of works is a minimal requirement to allow the “free use” of such works as orphan works.

The requested search for the rightholder shall be carried out with taking all necessary measures that can be expected in the given situation in good faith,  thus in case the beneficiary organisation has certain knowledge on the rightholder(s) identity or location, which could certainly be found by using a source of  information not listed in the Orphan Work Decree, the work  shall not be used as an orphan work, either.

The beneficiary organisation shall maintain records of all search carried out in order to find the rightholder(s). In these records it is recommended to indicate detailed the sources of information used during the  search, thus it can be proved that the search  in order to enable to prove the search was carried out with taking all necessary measures that can be expected in the given situation in good faith, once the rightholder(s) would  oppose it. 

In case the diligent search for rightholders was not successful, the beneficiary organisation shall submit the data of the work intended to be used to a single online record of the European Union. The single online record is maintained by the Office for Harmonization in the Internal Market (hereinafter referred to as OHIM record or database). The HIPO receives a notification about the report and takes measures for its transmission with no delay. (Please find further information about the above step of the procedure below, under the point of “What’s the role of HIPO in the procedure of free use by the beneficiary organisations?”)

The report submitted to the OHIM shall include the following data:

1. the result of the search for rightholders,
2. data on the   use concerned (e.g. which use the beneficiary organisation intends to exercise),
3. any changes in the legal status of work (e.g. the rigtholder(s) oppose(s) against the further use of the work),
4. data enabling to contact the beneficiary organisation.

The orphan work can only be used lawfully when the above listed data – following their transmission to the HIPO – are recorded in the database.

When a work to be found in the collection of the beneficiary organisation is already recorded in the HIPO database as an orphan work, the beneficiary organisation can use the work without carrying out the search for rightholders in this matter. In this case, in the database only the fact of the use shall be recorded by the beneficiary organisation.

On what kind of online surface shall the data be recorded?

Each beneficiary organisation – following an online registration –can modify data recorded in the OHIM database. Due to this right is provided, the beneficiary organisations can report the data regarding their search for rightholders through the OHIM database to the HIPO as well, in order to ease fulfilling their duty to report such use and to reduce the administrative costs.  Having regard to the new unified European regulation,  all beneficiary organisations of each Member State shall use the same database, therefore the HIPO does not maintain other online reporting surface. The record  can be made here: https://oami.europa.eu/orphanworks/#register

What is the role of HIPO in the procedure of use exercised by the beneficiary organisations?

After the report of data conducted by the beneficiary organisation, the HIPO receives an automatic notification of them. The reported data on the orphan work reported by the beneficiary organisations become visible via the OHIM database for the HIPO and will be transmitted without delay by the HIPO in order to record them in the database. The data on the use of the orphan work becomes be recorded and made accessible and searchable for the public following the above steps. The recording of such data in the OHIM database is a prerequisite for starting the “free use” of works exercised by the beneficiary organisation.

Can the HIPO reject the report of an orphan work?

The report of such data is not an administrative procedure, thus the HIPO does not have any discretional right concerning the transmission of such data. The only role of HIPO in this part of the procedure is to transmit the data to OHIM.

Can I report my claim for the use of orphan works via e-mail or post as well?

The beneficiary organisations can fulfil their duty to report such use only through the OHIM database. There is no opportunity to make the report via electronic or postal way.

Shall administration fee be paid in the procedure?

The procedure is free of charges.

Shall remuneration be paid for the use of orphan works?

Having regard to the rightholder being unknown or his/ her location being undeterminable, a beneficiary organisation can use the work as an orphan work, since no other opportunity is attainable to obtain a license from the rightholder. Due to this circumstance, any possible agreement regarding remuneration between the user and the rightholder is excluded, therefore remuneration shall not be paid for such use of orphan works.