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Digital technologies allow unprecedented preservation and sharing of
world-wide cultural heritage. Public and private players are increasingly entering
the scene with mass digitisation projects that will make this possible. In Europe,
legislative action has been taken to allow cultural institutions to include in their
online collections copyright works whose owners are either unknown or non-locatable
(‘‘orphan works’’). However, according to the Orphan Works Directive,
cultural institutions must attempt to locate the owner of a work before using it. This
is the so-called ‘‘diligent search’’ requirement. This paper provides an empirical
analysis of the conditions under which a diligent search can feasibly be carried out.
The United Kingdom, the Netherlands, and Italy, all of which have implemented the
Orphan Works Directive, have been selected as case studies. For each jurisdiction,
this analysis determines what the requirements for a diligent search to locate
copyright holders are, what the authoritative sources and databases to be consulted
are in practice and, most importantly, to what extent these are freely accessible
online. In doing so, our analysis provides insights into the two main issues affecting
cultural heritage institutions: (1) how much legal certainty does the implementation
provide, and (2) what is the practical burden of a diligent search. The analysis
reveals that the jurisdictions have given different meanings to the term ‘‘diligent’’.
While the UK’s extensive guidance makes it unlikely that a search would not be
deemed diligent, the search burden is onerous. On the other hand, Italy and especially
the Netherlands have a lighter search burden, but in the absence of clear,
definite guidance, the likelihood of accidental infringement by failing to meet the
diligence standard is greater. In addition, all three jurisdictions have so far failed to
take the accessibility of the sources into account, making the searches even more
onerous than the numbers suggest at first sight. Therefore, it will be difficult for
cultural institutions to clear the rights for their collections while fully complying
with the requirements of the legislation. This article concludes that legislative
action, official guidelines, or jurisprudence are needed to establish a different legal
value of sources for a diligent search, with various degrees of optionality depending
on data relevance and accessibility.