The Orphan Works Directive, or throwing a stone and hiding the hand

Dr Eleonora Rosati is an Italian-qualified lawyer (avvocato) and researcher at the European University Institute (Florence, Italy) where she has been recently awarded a PhD in copyright law. Eleonora, who has worked for Bird&Bird LLP both in Milan and London, is also part of The 1709 Blog and The IPKat blogging teams, for which she reports and comments on IP-related news from all over the world. Directive 2012/28 on certain permitted uses of orphan works was adopted at the end of October 2012. The directive intends to provide a legal framework to facilitate the digitisation and dissemination of orphan works, these being works and other subject-matter which are protected by copyright or related rights and for which no right holder is identified or for which the right holder, even if identified, is not located. The adoption of this directive was justified in light of insufficient action at the sole level of Member States and was meant to enhance EU competitiveness, while contributing also to the realisation of key actions of the Digital Agenda for Europe. It is submitted that none of these underlying objectives has been fully achieved by the directive, which contains numerous notions with an obscure meaning. As a result, Member States have been left with the difficult task of adopting implementing legislations. These have the potential to differ greatly at national level. The article concludes by arguing that, also in the case of orphan works, as has happened elsewhere, the Court of Justice of the European Union (CJEU) will have to fill in many of the blanks left by EU legislation