On 29 October 2014 the UK government released its orphan works licensing scheme (the “Scheme”). An “orphan work” is a copyright work or performance for which one or more of the right holders is either unknown or cannot be found after a diligent search.
Under the Scheme any person wishing to use an orphan work for commercial or non-commercial purposes in the UK can apply to the Controller-General of Patents, Designs and Trade Marks for a licence. The terms of the orphan work licences granted under the Scheme are specific. The licence will only apply in the UK, will be non-exclusive only, will prohibit sublicensing and will in some cases last up to 7 years only. Applicants need to make sure that they undertake a diligent search prior to applying for the licence. The UK IPO has published guidance on how to carry out a diligent search for rights holders. A market rate licence fee will be charged to compensate rights holders that identify themselves.
The UK IPO will maintain a register of orphan works containing information on the applications for licences, licences that have been granted and applications that have been refused thus allowing rights holders to check whether any of their works are being considered or have been licensed. If a licence has been granted and a rights holder subsequently comes forward, the rights holder may be compensated but the licence will continue until the expiry of the term granted.
The Scheme has been implemented by the Copyright and Rights in Performances (Licensing of Orphan Works) Regulations 2014, which came into force on 29 October 2014. At the same time the Copyright and Rights in Performances (Certain Permitted Uses of Orphan Works) Regulations 2014 came into force, which implements the EU Directive on certain permitted uses of orphan works (Directive 2012/28/EU). These regulations have introduced a specific UK exception to infringement for certain institutions, including publicly accessible libraries, educational establishments and museums, archives and public service broadcasters to allow them to copy orphan works for the purposes of digitisation, restoration, indexing and making them available on their websites.