The Issue of ‘Orphan' Works in Digital Libraries, Especially as Treated by the Directive 2012/28

This paper analyzes the ‘orphan’ works problem of the digital libraries’ perspective. ‘Orphan’ works, i.e. works of an unidentified -or unlocated- author, create a legal uncertainty, mostly affecting the large scale users in their mass digitization projects, that, although they need to use the works and they are willing to obtain a license, they are unable to do so, since they do not know from where to ask it. Aim of the paper is to explore the controversial situation that the ‘orphan’ works have created and the way that the legislation of the European Union law has decided to deal with this by adopting the Directive 2012/28. Part one will study why, how and when ‘orphan’ works entered into the modern copyright world. Part two will look through the problems that originate from ‘orphan’ works: economic, cultural, technical problems and the multi-territorial issue. Next, after analyzing the relevant legal framework for ‘orphan’ works in relation to digital libraries in part three and touching upon the legal solutions that exist -or are proposed- to confront this problem (part four), in part five it will be analyzed how the ‘orphan’ works are treated at the European level and the Directive 2012/28 will be presented. Finally, in the last part (part six) some tools to prevent the creation of future ‘orphan’ works will be mentioned.