The orphan works regime is a compliance tool designed for CHIs, not a shortcut for commercial reuse. In Malta, eligible institutions can digitise and make certain works available online without prior permission only after a recorded diligent search establishes orphan status and the relevant information is channelled through the competent national authority for entry in the EU-wide database. The framework reduces legal friction for public-interest access, but it also preserves rightholders’ ability to end orphan status and seek fair compensation.

Who this is for

• Publicly accessible libraries, museums, educational establishments, archives, film/audio heritage institutions, and public-service broadcasters.
• Collection owners and digitisation project teams needing a defensible permissions pathway for legacy works.
• Rights and compliance teams managing reputation and infringement risk around online access projects.

What this means for you

• You need a documented, good-faith diligent search process that stands up to scrutiny, not an informal “we tried” email trail.
• The EUIPO database is not optional theatre – it is part of the system’s transparency and cross-border effect.
• If a rightholder later appears, orphan status can end and compensation exposure must be anticipated in project governance.

European and national policy increasingly treats cultural access as an economic and social enabler – but digitisation involves acts that copyright law normally reserves to rightholders. A digital copy is typically a reproduction, and putting it online is generally a communication/making available to the public, so permission is the default starting point.

At EU level, Directive 2012/28/EU establishes a harmonised route allowing specific organisations to use orphan works to meet public-interest goals, provided the conditions are met. In Malta, the exemption operates through national rules implementing this EU framework (subsidiary legislation under the Copyright Act).

The beneficiaries are limited to certain CHIs and public-service broadcasting organisations. The policy logic is simple: the exemption is tied to a public-interest mission, not to general commercial exploitation. Private individuals and businesses may still need licences or other applicable exceptions (if any) for reuse.

The core gatekeeper is the diligent search. Under the EU framework, it must be carried out in good faith, for each work (and relevant embedded works), by consulting appropriate sources for that category of work. It must also be carried out before use. The search is generally carried out in the Member State of first publication (or first broadcast), with additional cross-border sources consulted where there is evidence relevant information may be found elsewhere. A practical approach is to design the search as a repeatable workflow (source list, steps taken, outcomes, and sign-off), because the record is what proves compliance if challenged.

Once a work is treated as orphan under the rules, information is recorded in a single, publicly accessible EU database managed by EUIPO.
In Malta, the government guidance identifies the Industrial Property Registrations Directorate within the Commerce Department as the competent national authority through which information is forwarded to EUIPO.
This transparency mechanism is also what gives the regime its cross-border practicality: orphan status recognised in one Member State is recognised across the EU.

A work is generally “orphan” where none of the rightholders are identified, or where identified rightholders cannot be located despite a diligent search.
If only some rightholders are found (a partial orphan scenario), the work is not treated as fully orphan – but use may still be possible if the located rightholders authorise the relevant acts for the rights they control.

When orphan status ends and compensation risk

If a rightholder later comes forward, they can put an end to orphan status and may be entitled to fair compensation for the uses made under the regime. This is one reason why governance matters: institutions typically plan for takedown capability, audit trails, and a practical route for rightholders to contact the project team.

Orphan works vs out-of-commerce works

Orphan works are about unknown or unlocatable rightholders. A separate EU pathway exists for certain out-of-commerce works held by CHIs, built around licensing solutions and an exception/limitation model for CHIs in specific conditions (DSM Directive). In practice, digitisation programmes often need both tools: one for “we cannot find them”, and another for “the work is not commercially available, but rightholders exist”.

• Designing a diligent search protocol that is proportionate, repeatable, and defensible for your collection type.
• Advising on whether a work is truly orphan, partially orphan, or better handled under licensing / out-of-commerce frameworks.
• Drafting project notices, rightholder contact pathways, and governance workflows to reduce dispute and reputational risk.
• Supporting database-recording readiness and internal documentation standards aligned with EU expectations.

FAQs

1) What is an orphan work in EU and Malta practice?
An orphan work is generally a copyrighted work where no rightholder can be identified or located even after a diligent search carried out and recorded under the applicable rules.

2) Who can use the orphan works exemption in Malta?
The regime is designed for specific beneficiaries such as publicly accessible libraries, museums, educational establishments, archives, heritage institutions, and public-service broadcasters acting within a public-interest mission.

3) Do we need permission before digitising an orphan work?
The exemption is designed to allow certain uses without prior permission, but only after a diligent search establishes orphan status and the use remains within the beneficiary’s public-interest mission.

4) What does “diligent search” mean in practice?
It means a good-faith search, for each work, consulting appropriate sources for that category of work, carried out prior to use. If evidence suggests relevant data is in another country, relevant foreign sources should also be checked.

5) Where is orphan works information recorded?
Member States provide for information to be recorded in a publicly accessible EU database managed by EUIPO. Malta’s government guidance points to its competent authority for forwarding information to EUIPO.

6) What happens if a rightholder comes forward later?
Orphan status can end, and the rightholder may be entitled to fair compensation for uses made under the regime, subject to the applicable national arrangements.

7) Can a private company rely on the orphan works exemption for a commercial project?
Generally, no – the orphan works regime is designed for defined beneficiary organisations and uses connected to public-interest missions, not open commercial reuse.

8) How do orphan works differ from out-of-commerce works?
Orphan works concern unknown or unlocatable rightholders; out-of-commerce works concern works not commercially available and are addressed through separate EU rules involving licensing solutions and CHI-focused exceptions.