The persistent implementation gap: a critical policy analysis of institutional barriers in the EU orphan works regime

Purpose – The purpose of this paper is to provide a critical policy analysis of the systemic deficits in operationalizing the Directive (2012 / 28/EU), using Italy as a paradigm case of implementation deficits. Design/methodology/approach – Moving beyond a simple review, this analysis is grounded in a doctrinal and regulatory review approach, critically examining the bureaucratic complexity, lack of operational tools and regulatory uncertainties that have limited the unlocking of this cultural heritage. Findings – Thirteen years after the Directive’s adoption, the balance sheet appears highly disappointing, and the application of the legislation has proven largely ineffective, primarily due to persistent administrative deficits at the national level. Research limitations/implications – This study highlights the need for comprehensive reform of the Directive’s national transposition and suggests implications for policy analysis concerning the implementation gap between EU legislation and Member State practice. Practical implications – The analysis concludes by reflecting on the need to simplify procedures, expand the scope for beneficiary institutions and integrate orphan works with open licenses and Rights Statement tools, enabling effective digital access while respecting intellectual property rights. Social implications – Facilitating access, the ultimate goal of the proposed reform holds significant social implications. Unlocking this previously inaccessible cultural heritage contributes to the preservation, democratic dissemination and public enjoyment of shared history, fostering education and research across societies. Originality/value – This study’s primary contribution is its critical policy analysis, which integrates legal-doctrinal review with institutional evidence (European Union Intellectual Property Office data and administrative reports). It provides an in-depth focus on the systemic administrative barriers in the Italian context, offering a comparative case study for analyzing wider EU implementation challenges.