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There is still life left in copyright: clearing up the misunderstanding surrounding the Enterprise and Regulatory Reform Act and 'orphan works'

Adam Rendle, associate at international law firm Taylor Wessing clears some of the misunderstanding surrounding the Enterprise and Regulatory Reform Act, which received Royal Assent on 25 April.

What the 'orphan works' act will mean

Much has been written about the damaging and radical effect of the changes to copyright licensing of "orphan works" introduced in last week's Enterprise and Regulatory Reform Act. Such conclusions are premature and may turn out to be overblown in practice.

The Act is a piece of "framework" legislation, which contains the power for the Secretary of State to introduce licensing of orphan works but leaves the detail to be filled in at a later date, through secondary legislation. When introduced, the new licensing powers will represent significant changes in the landscape of copyright licensing in the UK as well as a significant shift in favour of users of copyright works, at the potential expense of copyright owners. It is evidence of a general paradigm shift in UK copyright law, from being a property right which authors can use to control uses of their creativity to becoming, instead, a bargaining tool around which as wide a range of uses as possible can be made of their works. But, for now, the changes are not yet in force and we do not how they will operate in practice.

A copyright work will only be orphan if the copyright owner cannot be found after a "diligent search". The secondary legislation will provide more detail about what a diligent search involves and the criteria the "independent authorising body" will take into account when deciding whether such a search has been completed. Some works, particularly digital works stripped of ownership information, are easier to orphan than others and the requirements of a diligent search are likely to reflect that. It is likely that rights ownership registers will arise (for example as part of the UK's Copyright Hub) where would-be users will have to search; notifying those registers of ownership information will be an important step for all creators and doing so would defeat a claim that the work is orphan.

The secondary legislation will also identify who can grant orphan works licences and what those bodies can take into account. The licence will be from someone other than the copyright owner or his representative and this concept is certainly a new and radical development in UK copyright law. It is important to realise, however, that the licences will not be automatically available following a diligent search and that a market rate will need to be paid for them (which could be claimed by a reappearing parent).

In a further limitation, the same licensing regime will not necessarily apply to all types of works. The government has said, for example, that in principle orphan works licences could be made available for analogue photographs but not for digital photographs.

Particular attention has been focussed on the impact on social media content. There was no suggestion in the government's announcements that social media operators or users would be able to rely on orphan works licensing; the sectors covered are yet to be decided. The main beneficiaries of the licensing are intended to be institutions who have vast quantities of old material in a physical archive that they wish to digitise. If social media content were used on the basis it was "orphan", the user would face the risk of the parent reappearing and demanding a licence fee for continued use. The secondary legislation will set out how that will be dealt with. Use of social media content also puts the social media providers at risk of losing a significant defence to liability which is otherwise available to them.

The Act is the beginning of the road for use of orphan works but there is a long journey still to be travelled before the licences can be granted and their practical effect can be known. The symbolic effect, however, is clear already.

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