The institutions have to keep a record of their diligent searches and these need to be made available to the public; one purpose of having a public record is if a search of the records leads to the real copyright owner being identified or coming forward then the subject material will have its orphan work status rescinded.
Institutions may only use the orphan work to achieve their public interest mission and may only charge fees that reflect the cost of copying the material, or making it available to the public. In other words orphan works cannot be exploited commercially.
Meanwhile, the United Kingdom legislature ( Houses of Parliament) have introduced their own legislation to address the gap in the EU Directive namely not allowing orphan works to be used for commercial purposes.
Section ( clause) 77 of the Enterprise and Regulatory Reform Act 2013 was given Royal Assent (came into effect) on the 25th April 2013 and introduces a new section 116A to the Copyright, Designs and Patents Act 1988. Section 116A provides a framework from which further regulatory provisions will derive in order to regulate the status and exploitation of orphan works.
The key provisions arising from Section 116A:
- a work will not be an orphan work unless a diligent search is made to try and identify and locate the real copyright owner.
- the definition of diligent search will be defined in regulations yet to to be drafted.
- any license by one party to another to use or exploit an orphan work cannot be on an exclusive basis.
- The person or body given authority to grant a licence of an orphan work cannot also have the benefit of a licence.
A consultation period will follow and as a consequence of that consultation draft regulations will be prepared. The timetable for consultation, the extent of consultation and the ultimate implementation of regulations has yet to be determined.
Another feature arising from the Enterprise and Regulatory Reform Act 2013 is a new section 116B to the Copyright, Designs and Patents Act 1988 which allows collecting agencies, for instance Performing Rights Society,who neither own the work nor have the permission of the work’s author to license a work. This scheme is known as the extended collective licensing. There will be an opt out whereby it will not be compulsory for this process to be used. The rationale behind the provision is to increase the opportunity for copyrighted work or even eventually orphan works to be licensed and to increase the commercial opportunities amongst the various collecting agencies.