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Protection for ‘Orphan’ Copyright Works Set to Change

Thursday, 30 May 2013

Newly enacted Government legislation has caused a stir in its attempt to bring about change to UK copyright law relating to ‘orphan’ works. These works are defined as works which have no identified owner and include material such as images, books, films and music.

The new law will require those seeking to use orphan works to undertake a ‘diligent search’ to identify the rights holder before a licence may be granted for their authorised use.

Enterprise and Regulatory Reform Act 2013

Finding out whether a work is copyrighted and discovering who the owner of the copyright is in order to get permission to use the work can be a burdensome task, often proving unsuccessful.

Where the owner of a copyrighted work cannot be identified, the Enterprise and Regulatory Reform Act 2013 (the Act) will enable such orphaned works to be used without the creator’s direct permission.

The Current Law on Orphaned Works

Current UK copyright law operates such that vast amounts of material cannot be digitised or used without permission from the creator until the copyright expires, which under current legislation is usually seventy years after the death of the creator.

The Government has sought to tackle this issue through implementation of the Act in a system that will provide for the legitimate use of copyrighted material where the owner of the copyright cannot be identified.

How the Law will Work

While the new Act does not actually remove the copyright on orphan works, the provisions in the Act mean that its use may be authorised as if licensed by the owner, thereby removing the risk of copyright infringement where the owner cannot be ascertained.

Before a licence is issued, the applicant will need to undertake ‘diligent search’ for the rights holder. Any licence will be non-exclusive and is likely to be subject to a fee at the going rate to be held on the owner’s behalf until the rights owner comes forward or is discovered.

What Constitutes a ‘Diligent Search’?

At present there is no definition of ‘diligent search’ within the context of the Act, however the Intellectual Property Office (IPO) has confirmed it will issue guidance to help explain what a ‘diligent search’ would constitute within the various creative sectors.

The IPO has suggested that in order to define this term it will be necessary to engage a working group comprising representatives from various organisations and an array of industries. It is evident that any search carried out to identify an owner would have to be verified as ‘diligent’ by an independent authorising body and only then would they see fit to grant a licence to use the work.

The Likely Outcome of these Changes

While the Act has caused controversy, the IPO has strenuously denied that photographs and such creative material will be used regardless of whether it is copyrighted. It is hoped therefore that works which have no identifiable owner will be available for commercial and non-commercial use while still providing protection for such owners if they eventually come forward.

If you would like more information about these changes please contact James Crichton via e-mail or by telephone on 0207 611 4848.