Procedure for Using Orphan Works

In July 2023, bill No. 411043-8 on amendments to the Civil Code of the Russian Federation in terms of establishing the procedure for using certain objects of copyright and related rights, the copyright holders of which are unknown, was submitted to the State Duma of the Russian Federation for consideration.

In July 2024, this bill successfully passed all stages and as a result, Federal Law No. 190-FZ of July 22, 2024 "On Amendments to Part Four of the Civil Code of the Russian Federation" was officially published. Amendments to the Civil Code of the Russian Federation on the procedure for using orphan works will come into force on October 21 of this year.

When the author (copyright holder) of a work is considered unknown

The author or other copyright holder of an object of copyright or related rights is presumed to be unknown in any of the following situations:

• his name or title is not established;
• the name (title) of the copyright holder has been established, but information is unknown that would allow a legally significant message to be sent to him (Article 165.1 of the Civil Code of the Russian Federation), in particular:
• place of residence, if the copyright holder is an individual

The place of residence is recognized as the place where a citizen permanently or predominantly resides as an owner, under a lease (sublease) agreement, a lease agreement for specialized residential premises, or on other grounds provided for by the legislation of the Russian Federation, and in which he is registered at the place of residence (Article 20 of the Civil Code of the Russian Federation, Law of the Russian Federation of 25.06.1993 N 5242-1).

• address (location), if the copyright holder is a legal entity

The address of a legal entity is recognized as the address indicated in the unified state register of legal entities (clause 3, article 54 of the Civil Code of the Russian Federation).

How to Obtain Rights to Use an Orphan Work

First, it is necessary to take measures to establish the copyright holder, his place of residence or location. According to paragraph 3 of Article 1244.2 of the Civil Code of the Russian Federation, such measures should include:

• access to open sources of information corresponding to the category of objects of copyright or related rights that are intended to be used;
• contacting collective rights management organizations or publicly available information systems (registries) of such organizations;
• use of search and information systems;
• search through library and archival collections.

If the search does not yield results, you must contact an accredited organization for collective rights management with an application for the right to use the work of an unknown author (copyright holder). The requirements for the content of the application are set out in paragraph 2 of Article 1244.2 of the Civil Code of the Russian Federation, and the procedure for submitting it is established directly by the accredited organization.

The organization will conduct an appropriate check on the application and, if it comes to the conclusion that the work can be used, it will post an announcement on its official website about searching for the author (copyright holder).

If, within 90 working days from the date of posting the advertisement, the copyright holder is not found or no information is established that allows contacting him, the collective rights management organization may issue the applicant a non-exclusive paid license to use the work.

It will be possible to start using an orphan work after paying a fee, which will be credited to the nominal account of the collective rights management organization.