“Orphan” works are phonograms or audio-visual fixations which have already been published for the first time (Art. 9 para. 3 CopA), and whose author is unknown or not possible to contact. The work must be included in an archive of an institutional or broadcasting organization.
5a.7 Use of orphan works
Art. 22b of the Swiss Copyright Act provides a restriction of the right holder’s exclusive right, allowing the use of orphan works in certain circumstances and under the management of the collecting societies. The 2020 revision of the Swiss Copyright Act modified the provision of art. 22b by extending the type of works that may fall under this exception, not only phonograms or audio-visual fixations, as previously set, but all types of copyright protected works (also images and texts).
Definition of Orphan works
“Orphan” works are works whose authors are unknown or cannot be found (in the sense that it is not possible to contact) following an appropriate research effort. This provision considers any orphan work and regardless of the material medium (phonograms, videograms, printed books, digital files, etc.).
Conditions for using Orphan works
The use of orphan works is an exception to copyright foreseen by art. 22b CopA and is subject to the following conditions:
- The work does not have a known or available copyright holder. To come to this conclusion, the user must have carried out appropriate research effort. The extent of the research is appreciable on the basis of the principle of good faith and must be adapted to the circumstances. The user has fulfilled this duty when s/he has searched the relevant databases for the category of works to which the work is intended to be used belongs. For monographic works, the main catalogues of booksellers and publishers, the catalogues of national libraries, the complete ISBN register and the electronic telephone directory; for works of visual art, photographs or illustrations, the artists’ directory of the German Verwertungsgesellschaft Bild Kunst, the databases of Keystone, Sikart, Foto.ch and the electronic telephone directories. The burden of proof that the search was made with reasonable effort and was unsuccessful lies with the user (Art. 8 Civil Code).
- The work intended to be used must be in the holdings of a library, educational institution, museum, collection or archive that is in public hands or accessible to the public, or in an archive of a broadcasting organisation. It is not allowed to exploit orphan works that are not stored inside such institutional archives. For example orphan work simply found browsing the Internet, which do not have any relation to such archives, are not covered by this exception.
- If the user has identified an orphan work satisfying the above-mentioned conditions, before being allowed to use the work, s/he has to notify the existence of the orphan work to the collecting societies, which will issue an authorization of use, in principle upon payment of a compensation (Art. 22b para. 2 CopA). At the following links, on the right side of the website, it is possible to download the form that must be filled:
If these three cumulative conditions are fulfilled, the exploitation of an orphan work is possible and licit even without the consent of the copyright holder. This exception shall apply until the end of the copyright protection or until the actual rightholders are are known again and can be contacted again.
Without a specific rule, the user would have to take the risk of using a work without knowing the author or without being able to contact him. In case the author reappears or decides to claim his copyrights, not only he could exercise a civil law action for exploitation, but could also fill a criminal lawsuit against the user.
Updated according to the Swiss Copyright Act in force since April 2020.
No. Although it may indeed be an orphan work, art. 22b CopA does not allow the use of orphan works found from any source. It is only permitted to use an orphan work if the work is in a public institutional archive or open to the public and after notifying Prolitteris using the appropriate form. Before coming to the conclusion that the author is not known or cannot be reached, the user must have carried out research and shown diligence in doing so. In this case, a single image found by a private individual on the Internet, which is not part of a public institutional or broadcasting archive, is not considered by art. 22b CopA and cannot be used freely.