On 29 October 2014, the Department for Business, Innovation and Skills launched a new licensing scheme which aims to give wider access to millions of culturally valuable creative ‘orphan’ works.
Creative works or performances are subject to and protected by copyright so permission is needed from the right holder to copy them. However, sometimes it is not possible to find the right holder and the work cannot be reproduced without breaking the law. These works are referred to as ‘orphan works’. A work can be an orphan work where one or more of the holders of the copyright is unknown.
The new licensing scheme is intended to offer wider access to at least 91 million culturally creative works including diaries, photographs, oral history recordings and documentary films. The scheme will allow for an applicant to apply to the UK Intellectual Property Office for a licence to reproduce these works on websites, TV and in books without breaking the law. The orphan works licence will apply for use only in the UK , for commercial and non-commercial use and will be non-exclusive, meaning that the permission may not be limited to one single licensee. Licences can be granted for up to seven years.
Before applying for a licence, all applicants will be required to evidence that they have done a diligent search for the right holder in order to submit the application. It is then for the Intellectual Property Office to satisfy itself as to the quality of the search. The IPO may refuse an application if they think that a proper diligent search hasn’t been made, the proposed treatment, adaptation or alteration of the orphan work is derogatory, or use would be contrary to the public interest.
The licence is subject to an application fee and a licence fee. The amount of the fees will depend on how many different works are being used and how the applicant wants to license these works.
This scheme has also been designed to protect rights holders by ensuring that they can be remunerated if they do come forward – remuneration will be funded through the licence fees. The scheme also aims to reunite copyright holders with their work by requiring applicants to perform a diligent search and allowing right holders to search the register of granted licenses.
The UK scheme will be administered by the UK Intellectual Property Office and is the first system that will process electronic applications and enable a searchable register of the licences granted. The orphan works register will contain details of all applications for orphan works licences, licences that have been granted and applications that have been refused. This ground breaking scheme will build on UK and international best practice and will enable the public access to a range of culturally important works.
For further information and guidance on how to apply for a licence, visit https://www.gov.uk/apply-for-a-licence-to-use-an-orphan-work