UK implements licensing scheme for orphan works

Famous orphans

Famous orphans

The UK has implemented yet another piece of positive copyright reform by creating a scheme that licences orphan works. Now, that is one sentence that you do not get to say often enough, but it truly is heartening that we are undergoing a very interesting evidence-based approach to IP regulation in the last couple of years, thanks in part to the excellent Hargreaves Review of IP.  The proposal is also in part an implementation of the EU Orphan Work Directive (2012/28/EU), which requires member states to allow libraries, archives and museums to use and communicate works to the public if they have performed a diligent search of a work’s owner. The Directive defines diligent search as:

“…a diligent search is carried out in good faith in respect of each work or other protected subject-matter, by consulting the appropriate sources for the category of works and other protected subject-matter in question. The diligent search shall be carried out prior to the use of the work or phonogram.”

According to the UK’s Intellectual Property Office (IPO), the new licensing scheme could give wider access to at least 91 million culturally valuable creative works – including diaries, photographs, oral history recordings and documentary films.  These works are covered by copyright, but rights holders cannot be found by those who need to seek permission to reproduce them. Under the new scheme, a licence can be granted by the IP Office so that these works can be reproduced on websites, in books and on TV without breaking the law, while protecting the rights of owners so they can be remunerated if they come forward.

Under the new system, only qualifying institutions can apply for a licence. These are:

  • Publicly accessible libraries ;
  • publicly accessible educational establishments;
  • publicly accessible museums ;archives;
  • film or audio heritage institutions;
  • public service broadcasters.

The institutions must have been conducted a diligent search as defined by the Directive, and once that is done they can go to the IPO’s website and apply for a licence. If the IPO considers that all of the requirements have been met and the fees paid, then the institution is issued with a licence and the work is registered to the orphan works register, which will contain useful data about the work and the licensee in case that the owner comes forward. If the owner finds out that their work has been classified as an orphan, then they can ask the IPO to stop the licence, and they can also ask for the licence remuneration to be given to them. So both society and authors win.

This is an excellent development that should foster the open economy, and particularly it should help in the dissemination of information that was previously kept away from the public due to copyright fears.