S.L. 415.5 Art. 6Diligent search.

(1) For the purposes of establishing whether a work or phonogram is an orphan work, the organisations referred to in regulation 4(1) shall ensure that a diligent search is carried out in good faith in respect of each work or other protected subject-matter, by consulting the appropriate sources for the category of works and other protected subject-matter in question. The diligent search shall be carried out prior to the use of the work or phonogram.

(2) The sources to be referred to in the course of the diligent search referred to in sub-regulation (1), which are appropriate for each category of works or phonogram, shall include at least the relevant sources listed in the Schedule: Provided that the Minister responsible for intellectual property in Malta may prescribe other appropriate sources following consultation with rightholders and users.

(3) In the case of the works referred to in regulation 4(2)(a) and phonograms referred to in regulations 4(2)(b) and 4(2)(c), a diligent search shall be carried out in the Member State of first publication or, in the absence of publication, first broadcast as appropriate.

(4) In the case of cinematographic or audiovisual works referred to in regulations 4(2)(b) and 4(2)(c), the diligent search must be carried out in the Member State where the producer has his headquarters or habitual residence.

(5) In the cases referred to in regulation 4(3), the diligent search shall be carried out in the Member State where the organisation that made the work or phonogram publicly accessible with the consent of the rightholder is established.

(6) If there is evidence to suggest that relevant information on rightholders is to be found in other countries, sources of information available in those other countries shall also be consulted.

(7) The organisations referred to in regulation 4(1) shall maintain records of their diligent searches and these organisations shall provide the following information to the Department responsible for intellectual property in Malta:

(a) the results of the diligent searches that the organisations have carried out and which have led to the conclusion that a work or a phonogram is considered an orphan work;

(b) the use that the organisations make of orphan works in accordance with these regulations;

(c) any change, pursuant to regulation 8, of the orphan work status of works and phonograms that the organisations use;

(d) the relevant contact information of the organisation concerned.

(8) Upon receiving the information from the organisations referred to in regulation 4(1), the Department responsible for intellectual property in Malta shall forward the said information to the Office for Harmonization in the Internal Market.