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Library Initiative.' (DLHLEG, 2007). Three methods it proposed for
achieving this were non-legislative solutions that enhance transparency
and/or prevent the further expansion of the phenomenon of orphan
works:
dedicated databases concerned with information on orphan works
improved inclusion of metadata - information on rights holders -
in the digital material
enhanced contractual practices, particularly for audiovisual works.
The European preference for regulating the use and reuse of orphan
works without changing the corpus of EU law (the
Acquis Commun-
autaire
) has led to arrangements between collecting societies,
organizations of right holders and cultural heritage institutions. Within
the scope of the Copyright Subgroup, representatives from cultural
institutions and the creative sectors were invited to take part in sector-
specific working groups with a mandate to create guidelines for their
respective sectors for cultural institutions seeking to find rights holders
of works that might be orphan. These guidelines include the criteria for
a diligent search to be undertaken before digitizing a work. Each
category of works has a slightly different definition of an orphan work.
An orphan work is a work that has rights holders whose permission
is required to use it but who can either not be identified or not be
located, based on a diligent search on the foundation of due diligence
guidelines. This search must be both in good faith (subjective) and
reasonable, given the type of rights holder (objective). The parties
agreed on several criteria by which a work can be called 'orphan'. This
is only possible if a rights holder cannot be found when the criteria for
due diligence search have been followed. Considering that the standards
of due diligence could best be established in collaboration between
representatives of rights holders and cultural institutions, the
stakeholders declared in a Memorandum of Understanding (MoU) that
they had searched on a voluntary basis for generic due diligence
guidelines as a practicable and flexible tool for facilitating the
identification and location of rights holders for the lawful use of orphan
works. In this MoU the stakeholders also undertook to promote the
guidelines for diligent search as acceptable standards in dealing with
orphan works across Europe, to encourage and support the further
