Acquisition and expiry of the orphan work status in Polish and EU copyright law

Bibliogr. s. 240-242

The subject of this article is the analysis and evaluation of normative solutions adopted by the Polish legislator in Article 355, Articles 357-358 of the Polish Copyright Law compared to the regulations contained in the Directive 2012/28. The main focus is on the analysis of procedural and substantive law aspects regarding the proceedings on the acquisition and the expiry of the status of an orphan work and the formulation of conclusions de lege lata and de lege ferenda against this background. This issue is not an easy one and in principle not subject to in-depth analysis in doctrine. The concept, essence and categories of orphan works were considered, the data on these works contained in the European database of orphan works were analyzed, aspects of procedural and substantive law were analyzed in relation to the proceedings regarding the acquisition and expiry of the status of an orphan work. An analysis of the regulation adopted in Directive 2012/28 leads to the conclusion that it does not solve the problem of the permitted use of orphan works in a comprehensive, detailed, consistent and comprehensive manner. It should be emphasized that, despite many assumptions and postulates regarding the regulation of orphan works institutions indicated in the preamble to Directive 2012/28, they have not been fully implemented and the adopted regulations cannot be considered sufficient. Residual and incomplete regulation on the acquisition and loss of orphan work status in the national law of the Member States may raise doubts in the sphere of application of the law, which will be vested in the national courts. This may result in national courts having to refer questions for a preliminary ruling to the Court of Justice of the EU regarding the interpretation of the provisions of Directive 2012/28, which in turn may mean that the process of harmonization and unification of copyright in this field will be significantly impeded.