Licensing and Use of Orphan Works

There has been a lot of discussion and media attention, some of which has been sensationalist and often misleading (read headlines such as, "social media users lose ownership of their own photographs" (Telegraph) and "all your pics belong to everyone now" (The Register), about the use of so-called 'orphan works'.

We previously reported on the enforcement of copyright in an earlier post relating to a case featuring an aerial photographer who successfully brought a small claim for infringement through the Intellectual Property Enterprise Court small claims track.

What are Orphan Works?

Generally they are copyright protected works where the author cannot be identified.  For example, metadata may have been removed (legally or illegally) or never added to photographs which are then uploaded to social networking sites or the internet, meaning the owner cannot be identified either easily, or at all.

Although frequently referred to only in a digital context the term is not limited to digital media and works may be old photographs, books, films, scripts and musical compositions.

Use of Orphaned Works

Recent changes to the law by way of the introduction of the Enterprise and Regulatory Reform Act 2013, under which Section 77(3) confers a power on the Secretary of State to provide by regulations the grant of licences in respect of orphan works, have meant that provided a party has carried out a 'diligent search' to identify or locate an author then they will be able to apply for a licence to use the orphaned work.

The Copyright and Rights in Performances (Licensing of Orphan Works) Regulations 2014 ("CRPLO Regs.") set out the steps which must be followed if a person wants to use an orphaned work legally.  Regulation 4(1) states that:

"An orphan licensee shall, before applying for an orphan licence, carry out a diligent search or refer to an existing diligent search which is valid and, in either case, is appropriate to the orphan work which is the proposed subject matter of the orphan licence and relates to the rights in the relevant work which the orphan licensee proposes to use."

Details of what will constitute a diligent search are set out in Regulation 4(2) and (3) of the CRPLO Regs. Such a search conducted in accordance with the CRPLO Regs. will be valid for 7 years.  The IPO website has helpful guidance on interpretation of the legislation as to what will constitute a diligent search.

Licences

Provided a diligent search has been conducted, the IPO will issue a non-exclusive licence authorising the use of the orphan work within the UK. The licence will take effect as if granted by the missing owner, and will last for a period of up to 7 years. The IPO will only grant non-exclusive licences in order to avoid a monopoly on any particular use of an orphan work. It will also be a requirement of the licence to acknowledge the missing copyright owner.

The grant of licences are subject to the payment of a reasonable licence fee. The application fee will be £20 for one work, scaling up per work to the maximum of £80 for 30 works.  The scale fees to make an application are set out in a table on the IPO website.  The fee will take into account the type of work being licensed (literary, artistic, musical works etc.) and the level of fee paid for the similar use of a similar non-orphan work as well as the type of use (i.e. commercial or non-commercial).

Should a 'missing' copyright owner lay claim to an orphan work they may requesting that the sums be paid to them.  In order to meet any such demand the IPO will retain licence fees for 8 years from the grant of licence. After this period, the IPO plans to use unclaimed fees to fund the set-up and administration of the licensing scheme itself, while any excess may be used to fund social, cultural and educational projects.

It is worth noting that, at present, the licence fee for non-commercial use has been set at a very low threshold: the licence fee for all non-commercial uses has been set at 10 pence (£0.10) per work.

Orphan Works Register

The CRPLO Regs. provide for a register of orphaned works to be created and maintained by the authorising body, in this case the IPO.  This register has now been in existence for almost 6 months and so far 263 applications for licences have been made and 220 licences have been granted.

The majority of applications (215) are for still images, of which 202 concern photographs with the remainder being for paintings. Written works are the next most popular with 34 applications and 19 licences granted. 14 sound recordings have been the subject of applications, but interestingly so far no licences have been granted in the category.  Scripts and choreographic works (1 application awaiting further information), Musical notation (1 licence granted) and Moving Images (no applications).

Exceptions

Cultural heritage institutions ("CHI's") which include archives, libraries, museums, educational establishments and public service broadcasters, may make certain uses of orphan works without having to apply for a licence.  After completing a diligent search, a CHI may make an orphan work accessible to the public, and may copy the work for the purposes of digitisation, preservation, cataloguing or indexing. The exception covers the use of literary works, cinematographic works, audiovisual works and sound recordings across the EU, but does not include standalone artistic works like photographs, maps, plans and drawings.

Guidance

The IPO has published various guides on orphan works setting out how to apply for licences and appeal any decisions where applications for licences have been refused.

If you require any advice or assistance on the issues raised in this article please contact us on 0191 212 4000 or legal@mcdanielslaw.com