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Orphan Works

OrphanWorks EUThe United Kingdom will have to complementary pieces of legislation addressing how copyright law handles orphan works. An orphan work is where the author or creator of the copyright cannot be identified, found, or it remains uncertain whether the material remains within copyright which in the United Kingdom copyright expires usually 70 years after the death of the copyright owner.

The European Union Orphan Works Directive (2012/ 28/EU) which becomes effective in the United Kingdom on 29th October 2014 will apply to institutions like public libraries, education establishments, museums and archives. Should such institutions wish to use an orphan work then they must carry out a diligent search from an appropriate source. The directive gives some guidance as to what is an appropriate source. The Directive allows EU Member States to add to the list as to what they deem to be appropriate sources.

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the real copyright owner being identified or coming forward then the subject material will have its orphan work status rescinded.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.

Julian Wilkins

Julian Wilkins is Editorial Director for Blue Pencil Media Limited. Julian has a LLB (Hons) in law and M.Phil in law as well as a Diploma in European law and was admitted as a solicitor in 1988; he practices in the area of media, entertainment, and intellectual property law as a consultant for Devereaux Solicitors in London. Julian is also a Notary Public and CEDR accredited commercial mediator. Julian has written for academic publications and contributed to an Exhibition Catalogue about 1960s photographer Philip Townsend. Julian is a member of the International Association of Entertainment Lawyers and also the British Institute of International and Comparative law. Julian is a finalist in The Media Lunch Club “Short Circuit” script competition to be held in November 2011. Julian’s comments “The rapidly changing world economy and technology is presenting incredible opportunities for the Creative Industries and Blue Pencil hopes to reflect and contribute to these changes.”

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