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What you need to know about using orphan works - the legal view on copyright reforms

By Neil Eagleton

April 30, 2013 | 4 min read

The Enterprise and Regulatory Reform Act, which has now been given royal assent, means copyrighted works for which the owner of the copyright is unknown or can’t be found will be licensed for the first time. Neil Eagleton, an associate at law firm Sheridans, tells you what you need to know.

This Bill, which received Royal Assent on 25 April 2013, aims to modernise the UK’s copyright licensing system so as to allow the UK’s creative industries to be more competitive. The Bill aims to do this through a variety of measures, including notably for the first time allowing “orphan works” to be licensed for use, an issue that has divided opinion and been discussed for some time.

Orphan works are copyright works but where the authors of the works cannot be identified or traced. These works could include books, films, music or even huge numbers of unidentified photographs on the internet.

Previously, under UK copyright law, orphan works could not be used without permission or by waiting until the term of copyright expires. One consequence of this is that vast numbers of orphan works are unused in storage at various institutions such as libraries and museums.

The changes under the Bill allow organisations to pay in advance to license orphan works for use as part of digitisation projects, for example.

There are a number of potential issues with this system and it is clear that the proof will be in how this works in practice. There is no prescribed level of due diligence that should be done to ascertain whether a work has a traceable author and protect against an infringement action should the author surface and it seems that a “diligent” search will suffice.

What about works where metadata or other information identifying an author has been removed? Presumably, a user could legitimately consider a work as an orphan work when in fact its author is very much active.

Many people are concerned that their photographs on social networking sites can now be used by others if they are unable to trace them to the author. Clearly, technology will adjust to the Bill in so much as data could be automatically tagged in photographs so as to identify the author or give certain permissions. In the meantime, should people be worried? If you do not want your work entering into a collective licensing scheme, you can opt-out by registering your work. It remains to be seen how often this process is utilised.

If your work has been licensed as an orphan work, the license fee will effectively be held on your behalf if you claim it. It would appear rather difficult to value orphan works and set license fees without a market rate.

The Department for Business, Innovation and Skills says: “Remuneration should be payable, at the time of use, for orphan works and it should be at a rate appropriate to the type of work and type of use. Not requiring payment of remuneration is unfair to rights holders and, in a commercial environment, it risks under-cutting the market for non-orphan works.”

Exceptions to these payments could include public cultural institutions using orphan works for the purpose of digitising content libraries – for non-commercial use.

At the very least, it is going to be important to maintain databases of works identifying authors and for there to be an authority in charge of licensing and recording the use of orphan works. Individuals may well be more careful about the images they post on public forums but the reality is that embedded tags are often stripped out by image hosting services and the only solution would be to apply watermarks.

This is a complex proposal and has certainly divided opinion. Time will tell if this Bill (and the subsequent legislation once enacted) improves and streamlines the UK’s licensing system or creates a minefield of ownership and infringement issues.

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