Requirements for Diligent Search in the United Kingdom, the Netherlands, and Italy

The Object of the Analysis
This Working Paper provides an analysis of the conditions under which a Diligent Search can be carried out under the laws of Italy, the Netherlands and the UK. These pilot countries are both members of Heritage Plus and of the European Union. For each jurisdiction, the analysis has determined what are the requirements for Diligent Search to locate copyright holders and in particular: a) Who can carry out a Diligent Search and on what conditions; b) What are the authoritative sources and databases to be consulted and to what extent they are accessible on line; c) What use can be made of an orphan work. This will allow the researchers, in the subsequent stages of EnDOW, to design and populate the crowd-sourcing platform that will facilitate carrying out Diligent Search for mass digitisation.
The Sources for Diligent Search
All three examined countries have implemented the Orphan Works Directive.
A) The legislation allows others to carry out the Diligent Search on behalf of cultural heritage institutions; however, these will remain responsible for the Search. B) The examined national legislation provides both specific sources to be consulted in order to locate the rightholder of a potentially orphan work, and general indications on how to locate other sources (collecting societies, authors’ guilds, unions and associations, national libraries, catalogues, agents, etc). C) Uses for orphans vary among countries. They include: preservation; public communication; educational purposed; personal use; ‘digital’
publication. Their relationship with the corresponding copyright exceptions is unclear.
Accessibility of the Sources
The Statistical analysis on the accessibility of the sources to be consulted to locate the rightholder of a work has revealed that a sizeable share of these is not freely accessible online. General Orphan Works’ repositories and database are freely accessible, but authors’ guilds and unions generally are not. Newspaper archives are often accessible for a fee. There is no hierarchical validity of sources by law.
Conclusion
The study suggests that individual users can carry out Diligent Search on behalf of Cultural Heritage institutions. However, in this sample little more than half of the sources for Diligent Search are freely accessible online. As a result, it is not clear how a cultural institution can clear the rights of its collections while fully complying with the requirements of the legislation. Legislative action, official guidelines or jurisprudence are needed to establish different legal value of sources for diligent search, with various degrees of optionality depending on data relevance and accessibility.