Copyright exists in most literary, artistic, musical and dramatic works provided they are original. It arises automatically, and unlike many other intellectual property rights, copyright requires no registration. It entitles the owner of a work to prevent others (subject to a few limited exceptions) from copying it or otherwise exploiting it, without his or her permission.
This article is concerned with artistic works and copyright, and the new legal approach to such works under the Enterprise & Regulatory Reform Act 2013 ("ERRA"). In particular, the dominance of the internet renders these changes significant, and not, according to many artists, entirely welcome.
Orphan works scheme
A new scheme (under the ERRA) sets out a procedure to issue licences for such works, both allowing users to legally reproduce or publish so-called "Orphan Works" (works where the copyright owner is unidentifiable and/or untraceable). In the context of the internet, works often become orphaned where accreditation has been removed and the work is reproduced on distant and obscure websites. The scheme will introduce the creation of a register that lists the uses of orphan works.
How will it work?
Any person wishing to use an orphan work will need to apply for a licence, subject to a royalty fee, payable in advance. As part of that process, they must undertake a diligent search for the copyright owner (whether the author or, in the case of sound or film recordings, the body who made the arrangements for the recording), which will then be verified by a government appointed independent authorised body. The licence fee will then be held for the missing copyright owner to claim. Those using the orphan works will have to make clear how the owner can contact the orphan works' authorising body to regain control of their work. The scheme does not interfere with a creator's automatic right to copyright ownership.
How does the law affect users?
Currently, use of orphan works is illegal as it will constitute an infringement of copyright, except by public institutions for limited public interest purposes. The new law allows users to make use of orphan works under licence (subject to payment of the applicable licence fee). The licence for use of an orphan work will not allow sub-licensing, meaning that the user will not be able to license others (and potentially draw income) to use the work.
How does it affect creators and copyright owners?
The scheme is intended to benefit creators of orphan works: currently, orphan works are either not used at all or are used illegally - both resulting in no remuneration (leaving damages for copyright infringement aside). With the introduction of the scheme, the creator will arguably be in a better position than at present - they will have a greater chance of being reunited with their work (due to the register of such works) and will obtain remuneration if they come forward. The register will be maintained by the relevant body so that copyright owners can check if any of their works are being considered for licensing or have been used already.
Some creators have expressed a fear that works may be falsely made to appear as orphan works. This would arguably allow third parties access to such works at a cheaper royalty rate than going through the copyright owner, undercutting not only the creator, but the market in general. The UK Intellectual Property Office has responded to such criticism, stating that it is unlikely that the scheme will be attractive in circumstances where a substitute work is available. Indeed, it indicates that compensation for creators subsequently coming forward as owners of orphan works will be set aside at a rate comparable with the market rate for use of similar copyright works where the owner is known.
Extended Collective Licensing
Alongside the scheme relating to orphan works, the ERRA proposes a separate initiative of Extended Collective Licensing (ECL). Broadly speaking, this would allow collecting societies to license authorised types of work and to collect fees for these works on behalf of copyright owners. Although ECL would be promoted for certain sectors, it is not being proposed as a replacement for direct licensing. It cannot be imposed on any sector - it can be established only by application from a collecting society, which must prove that it represents a significant number of the copyright owners who would be affected, and that its members support the application. As such, it would only likely be available where there is already an established tradition of collective licensing. Photographs on the internet (and otherwise), are generally licensed directly and it is considered unlikely that an ECL model would replace this.
If ECL is authorised for a particular use of a type of work, collective licensing in that area would shift from an "opt in" to an "opt out" basis. This means that an authorised collecting society will be able to licence on behalf of all copyright owners in the sector, except where the copyright owner chooses to opt out of the scheme. Debates abound online concerning this aspect of ECL. Already protected by copyright, creators in some sectors are concerned that they will now have to opt out of the scheme to regain access to this copyright. Perhaps the most vocal opponents to ECL (and the orphan works scheme) are photographers, many of whom object to the idea of a compulsory collecting society. There are safeguards contained in the ECL model - collecting societies would have to adhere to a code of conduct which meets the government's minimum standards, including protection for non-member copyright owners. Ultimately, however, it is unlikely that ECL will be an option for photographers. There is a strong tradition of direct licensing of photographs and there is no collecting society for photographers in the UK, so no application for ECL is feasible at present.
The debate goes on
Particulars of how the legislation will operate in practice are yet to be developed in further detail. For example, in relation to orphan works, what comprises a diligent search and what the "going rate" is for certain works has not been determined. A Working Group has been set up by the industry-led Digital Copyright Exchange (DCE) to consider the issue of metadata and try to get cross-industry agreement ensuring that metadata is kept with copyright works. This group involves key players (among them those who voice opposition to the reforms): the Association of Photographers, Stop43, the British Association of Picture Libraries and Agencies and Getty Images.