UK Scheme Opens Access to 91 million Orphan Works
Under a new scheme launched on 29 October 2014 in the UK, over 91 million ‘orphan works’ can be licensed by users to give wider access to works such as diaries, photographs, oral history recordings and documentary films. ‘Orphan works’ are works in which copyright still exists, but where the holder of the copyright cannot be located.
Prior to this scheme being launched, if the right holder of a copyright work could not be found the work could not lawfully be used. Although this scenario was not specific to the UK, in the UK it was felt such a situation benefited neither the right holder, who may miss opportunities for licensing, nor potential users of those works. So, following a consultation by the UK Intellectual Property Office the Orphan Works scheme has been introduced. Under the scheme a licence can be granted by the UKIPO allowing these works to be reproduced for example, 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.
The scheme is administered by the UKIPO and allows potential users to apply for a licence and pay a fee to obtain a licence to use the work. A market rate fee will be charged for the licence, which will be kept to compensate right holders should they come forward. An application fee is also charged which will cover the administrative costs of the scheme.
UK Orphan Works and the EU Orphan Works Directive
The UK scheme is the first to use an electronic application system and will provide a searchable register of the licences granted. It is being implemented alongside the EU Orphan Works Directive that enables cultural institutions to digitise certain orphan works in their collection and display them on their websites. Together these 2 schemes will help to display more of the UK’s cultural work at home and across Europe.
The UK licensing scheme and the Directive are complementary but separate:
- The EU Directive on certain permitted use of orphan works provides an exception to allow cultural institutions to digitise written, cinematic or audio-visual works and sound recordings and display them on their websites, for non-commercial use only. The EU Directive comes into UK law on 29 October 2014.
- The UK Orphan Works licensing scheme enables licensing of copyright works in the UK where the right holder cannot be located. The licensing scheme applies to all types of orphan works and provides for broader commercial as well as non-commercial use. It can be used by anyone and is not just restricted to cultural and heritage bodies.
How to Apply for an UK Orphan Work Licence
To apply for a licence, an online application form must be completed. If the licence is for a photograph or a still visual image, an image of it will need to be uploaded as part of the application process. If granted, an orphan works licence will be for commercial or non-commercial use in the UK only, will be non-exclusive, and initially last for up to 7 years (but can be renewed).
Before a licence can be applied for, a diligent search for right holders in accordance with IPO published guidance must be carried out. One of the aims of this search is to reunite copyright holders with their works and ensure they are paid for their creations. But some organisations have expressed concern that the potential time and costs involved in the process in order to use an individual orphan work may make it an unrealistic option in some circumstances.
It is hoped that as the scheme progresses and the register grows, users will be able to access more of the UK’s great copyright works more easily, whilst protecting right holders and giving them a proper return if they are eventually reunited with their copyright work.
This update was prepared by Alice Gould, one of the partners in HGF Law at our London office.
If you would like further advice on this or any other copyright matter, please contact Alice Gould firstname.lastname@example.org or your usual HGF representative or visit our Contact Page to get in touch with your nearest HGF office.