Audiovisual Orphan Works: a Legal Perspective of the Portugal

Abstrakt

When we speak of orphan works, we must bear in mind that the concepts of 'author' and 'work' are essential. Despite how well it is argued (e.g. by Caridad Del Carmen Valdez Diaz, 2014) that there is neither a work without an author nor an author without a work, the work can have an autonomous life without the author, and it is in this context that the problem of orphan works can be examined. This issue has gained a greater significance with the current possibilities of digitization and placement of works on the Internet, by which they become available globally. In fact, digitizing a work implies its copying, which in itself immediately poses intellectual property problems. Orphan works and their status are described in the Portuguese Copyright and Related Rights Code (CDADC), which was adopted due to the transposition of Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works. The directive provides for the use of orphan works only by public entities, as stipulated under Article 1, and the use of those works is allowed only for cultural and educational purposes in accordance with Article 6(2). National legislators have discretion to frame other situations when orphan works may be used, provided that those do not contravene the provisions of the directive. The EU has been carrying out a copyright reform to adapt to the digital age and address such issues as orphan works. As part of the Digital Single Market Strategy, the EU adopted Directive (EU) 2019/790 of 17 April 2019 on copyright and related rights in the Digital Single Market. This directive aims to harmonize copyright regulations in the digital market, ensuring fair remuneration for authors and creators. It introduces new provisions for the use of orphan works yet not specifically for audiovisual orphan works.