So, the Digital Economy Bill has been unleashed upon an unsuspecting public (if we exclude the twittering and blogging classes of course). The Bill is already being scrutinised by various parties, and the veredict seems to be worrying, as it implements three strikes disconnection, as well as other seemingly abusive provisions.

I will be going through it in more detail in the next couple of days, but initially I was pleasantly surprised to find that the bill contains a section related to orphan works. As I have mentioned before, orphan works are a hot legal topic at the moment thanks to the Google Book Settlement, which has forced policy-makers to respond to the orphan work issue before (and if) the agreement comes into force. The relevant section of the Bill is related to licensing of copyright works (s 42), will include a new section to the Copyright, Designs and Patents act that reads:

“116A Licensing of orphan works
(1) The Secretary of State may by regulations provide for authorising a licensing body or other person to do, or to grant licences to do, acts in relation to an orphan work which would otherwise require the consent of the copyright owner.
(2) An authorisation or licence under the regulations in favour of any person must not preclude any authorisation or licence in favour of another person.
(3) The regulations may provide for the treatment of royalties or other sums paid in respect of an authorisation or licence, including—
(a) the deduction of administrative costs;
(b) the period for which sums must be held for the copyright owner;
(c) the treatment of sums after that period (as bona vacantia or otherwise).
(4) The regulations may provide for determining the rights and obligations of any person if a work ceases to be an orphan work.
(5) The regulations may provide for the Secretary of State to determine whether any requirement of the regulations for a person’s becoming or remaining authorised has been met or ceased to be met.”

While any legislative move towards regulating orphan works must be welcome, I cannot help but feel that the worst option possible has been chosen, namely licensing. Most experts agree that there are three different strategies to take when it comes to orphan works: reduce liability (as proposed by U.S. bills on the subject); create an exception, or allow an existing body to license the work in question (the Canadian experience). I think that the way in which the Canadians have modified their copyright legislation to allow for their Copyright Office to decide on a case-by-case basis is rather good. The problem with the licensing proposal in the proposed UK bill is that it seems to be geared towards making collective societies the ones responsible for receiving payment for use of orphan works. Call me cynical, but this seems like a system that will create a new revenue stream for collective societies, one that it is very unlikely that they will have to pay to legitimate owners. No wonder collective societies seem to relish the opportunity of becoming the recipients of orphan works licence fees.

The more logical solution seems to me to create an exception to copyright law that will allow limited use of the work if exhaustive and conscientious effort has been made to locate the rights holder. This right could stop the moment the holder is identified. This section is a lost opportunity, thankfully it has been added to a bill that one would hope will not see the light of parliamentary vote.



Naomi Korn · November 22, 2009 at 9:09 am

HI Andres

I share your views that ideally we would want an exception – however the wording "authorising a licensing body or other person to do…" + propositions in (2) I think means that if anything, non collecting societies can apply directly to the Secretary of State for a non-exclusive licence, which I believe places these proposals in a very favourable position to academics/cultural heritage sector etc (as well as complying with Berne and renumeration to rights holders should they come forward). I'd be interested in your views.




    Andres · November 23, 2009 at 3:51 am

    Hi Naomi,

    I agree that the wording is broad enough to include other societies to act as beneficiaries and collectors. I used to be in favour of the licensing solution, until I realised that what is being discussed really is to give licensing rights almost exclusively to collecting societies. I was in a conference recently on orphan works, collecting societies were practically tripping over each other shouting “choose me!”


carl.h · December 3, 2009 at 10:25 am

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