Last week the Department for Business Innovation & Skills (BIS) launched a new licensing regime with the aim of facilitating the lawful use of orphan works. The licensing scheme is implemented under the Copyright and Rights in Performances (Licensing of Orphan Works) Regulations 2014 which came into force on 29 October 2014.
An orphan work is any copyright work (e.g. a drawing, written work, photograph etc.) whose owner cannot be identified or located. Before the Regulations came into force, anyone making use of an orphan work would be in breach of copyright as there is no way to obtain consent from the owner of a work who cannot be identified. Copyright works do become part of the public domain after a certain number of years but since the creator of orphan works is often unknown, it will be difficult to assess when the free and lawful use of the work will start.
Now applications to use an orphan work can be made to the Intellectual Property Office (IPO). The applicant will have to ‘demonstrate that a diligent search has been carried out’ in order to locate and identify any rights-holders. When making an assessment on whether the search has been diligent, the IPO will consider the type of work and the surrounding circumstances.
The UK Orphan Works Register and EU’s OHIM Orphan Works Database include works that have already been declared ‘orphan’ and therefore are good places to start the search. The IPO has published extensive guidance and checklists for carrying out diligent searches in respect of film, sound, literary works and still visual art. These include making enquiries with creative interest groups, tracing heirs of potential rights-holders and considering the source from which the applicant received the work which could provide clues as to the provenance. In addition to evidencing a diligent search, the application should also reveal the proposed uses of the orphan work.
The IPO may reject the licensing application if:
- the search is insufficient;
- the proposed use is inappropriate or derogatory;
- granting the licence would not be reasonable in the opinion of the IPO; or
- granting the licence would not be in the public interest.
The IPO will grant licences to reproduce orphan works for commercial and non-commercial purposes. The licence will be non-exclusive, last for a maximum of 7 years and the licence fees will vary depending on the type of work and the proposed use. Fees are expected to be higher for commercial purposes.
With the number of orphan works estimated at 91 million, it is anticipated that the licensing regime will enrich the cultural offerings at museums and libraries. Photography groups, on the other hand, have been less welcoming in respect of the new regime which may be due to the ease at which metadata and watermarks can be removed from photographs.
The Regulations provide a remedy where a photographer or any other person thinks that his or her work is licensed as an orphan work when it should not have been. A report needs to be submitted to the Orphan Register who will then ask for further evidence to ascertain ownership of copyright. Even if the owner can be established at this point, any licences already in existence will continue to subsist as granted. However, if less than 8 years have elapsed from the commencement of any orphan works licence, the licence fee will be paid to the now-ascertained owner.