Now that copying and reproducing material electronically is so easy, you can find yourself infringing copyright almost without thinking. Where a film clip, photograph, piece of music or text, for example, does not obviously belong to anyone, can you just use it or do you have to steer clear? This has up to now presented a problem (at least for those with a reputation to protect).
'Orphan work' is the legal term used to describe creative material that attracts copyright or similar protection but whose owners cannot be found to ask permission for use. There is a vast amount of material falling into this category – photographs, films, diaries etc. – which others would like to use. Now they will be able to.
The UK Intellectual Property Office has set up a new scheme (under the Copyright and Rights in Performances (Licensing of Orphan Works) Regulations 2014) to grant licences of orphan works. Access to the material will not be free. The IPO will charge an administration fee and will also set and collect a licence fee for the lost owner in case they notice that the work is being used and come forward. The fee should reflect what a similar work would command in a normal licensing context. Licences will be restricted to seven years, with no right to sub-licence, and can be refused on any reasonable grounds.
A register of the licences already granted will be searchable so that copyright owners can find out whether their works are being used. They will have eight years to come forward and claim the licence fees.
Applicants to use the material will be required to carry out a diligent search for the owner before being able to access an IPO-granted licence, and detailed guidance has been issued on what that diligent search should entail. An applicant will have to provide details of the search they have carried out along with the licence application.
Note that certain cultural and heritage organisations will not need to use the scheme. They are granted a special exemption under separate regulations implementing EU Directive 2012/28/EU. These rules will allow non-commercial use of orphan works by, for example, publicly accessible libraries and museums, without the need to obtain a licence. You can work out whether you can benefit from this exemption here.
Presumably many people will carry on using material without the hassle and expense of searching, applying for a licence and paying the fees, in the hope that they will not be caught, but for those who want to make sure that they are not infringing, the scheme is a great way to make sure you are in the clear.