The Federal German Cabinet agreed on draft legislation on the use of orphan and out-of-commerce works this week. The chair of the board of the Deutsche Digitale Bibliothek (DDB) Competence Network, Prof. Dr. Hermann Parzinger, welcomed the draft, saying it was an important contribution to furthering the Herculean task of digitising our cultural heritage. The law will enable cultural and scientific institutions to proceed with plans to digitise and provide access to works whose authors or copyright holders cannot be found. Many online cultural portals such as the DDB and its European counterpart EUROPEANA will benefit from this move. The DBB can now incorporate digitised copies of numerous works that could not be previously included for legal reasons. This will greatly enrich the DBB, making it even more attractive to its users.

An orphan work is one whose legal rights holder is not known or cannot be found. The digitisation and online publication of these works has been hindered to date, as there is no way to attain the consent of the copyright owner. Numerous treasures in the holdings of cultural and scientific institutions are in danger of disappearing from the public domain completely. The new law allows certain institutions (public libraries, archives, museums etc.) to digitise and publish such works online as long as they have conducted a prior diligent search for the rights holders in accordance with a list of predefined criteria. How the envisaged procedures can be best integrated into the day-to-day workflow of public institutions will have to be carefully assessed in the future.

The proposed law also regulates the use of out-of-print works and grants the right to re-publish scientific research for ‘out-of-commerce’ purposes if it was publicly funded. The legislation implements the EU Directive 2012/28 on the permitted forms of use of orphan works.