S.L. 415.5 Art. 9Permittedd uses of orphan works.

(1) Notwithstanding the provisions of articles 7(1)(a) and 7(1)(e), as well as articles 13(a), 13(e), 15(a) and 15(d) of the Act, the organisations referred to in regulation 4(1) shall be permitted to use orphan works contained in their collections in the following ways:

(a) by making the orphan work available to the public, within the meaning of articles 7(1)(e), 13(e) and 15(d) of the Act;

(b) by acts of reproduction, within the meaning of articles 7(1)(a), 13(b) and 15(a) of the Act, for the purposes of digitisation, making available, indexing, cataloguing, preservation or restoration.

(2) The organisations referred to in regulation 4(1) shall use an orphan work in accordance with sub-regulation (1) only in order to achieve aims related to their public-interest missions, in particular the preservation of, the restoration of, and the provision of cultural and educational access to, works and phonograms contained in their collection. The organisations may generate revenues in the course of such uses, for the exclusive purpose of covering their costs of digitising orphan works and making them available to the public.

(3) The organisations referred to in regulation 4(1) shall indicate the name of identified authors and other rightholders in any use of an orphan work.

(4) These regulations are without prejudice to the freedom of contract of such organisations in the pursuit of their public-interest missions, particularly in respect of public-private partnership agreements.

(5) A fair compensation shall be due to rightholders that put an end to the orphan work status of their works or other protected subject-matter, for the use that has been made by the organisations referred to in regulation 4(1) of such works and other protected subject-matter in accordance with sub-regulation (1). The level of compensation shall be agreed upon by the organisation making use of the work or protected subject matter and the re-appearing rightholder after having taken into consideration the following circumstances:

(a) the non-commercial nature of the use made by the organisation,

(b) the public-interest mission of the organisation using the work or the protected subject matter to which the re-appearing rightholder is claiming a right;

(c) the possible harm made to the re-appearing rightholder by the use of the work or the protected subject matter: Provided that in circumstances where prejudice to the rightholder is minimal, such as in those cases where there has not been economic use of the work or protected subject matter for a reasonable period of time, no compensation shall be due:

Provided further that a fair and reasonable compensation is only due if re-appearing rightholders are able to demonstrate their right to the work, and the extent of their right.

(6) Where the organisation making use of the work or protected subject matter and the re-appearing rightholder cannot reach an agreement as to the level of compensation due by the organisation to the rightholder, then either party can refer the matter to the Copyright Board which shall determine the amount of fair compensation due to the rightholder and order that such amount be paid after taking in consideration the circumstances referred to in sub-regulation (5)(a), (b) and (c).