The Copyright and Rights in Performances (Licensing of Orphan Works) Regulations 2014 (SI 2014/2863) and the Copyright and Rights in Performances (Certain Permitted Uses of Orphan Works) Regulations 2014 (SI 2014/2861) (together, the Regulations) came into force on 29 October 2014.
Orphan works are copyright works or performances where one or more of the copyright owners is unknown or cannot be found. They cannot be copied without the permission of the copyright owner or an orphan works licence from the Intellectual Property Office (IPO), unless one of the exceptions applies; for example, non-commercial research and private study, or news reporting.
EU member states must implement the EU Directive on orphan works (2012/28/EU) (the Directive) by 29 October 2014.
The Regulations introduce a new UK orphan works scheme (the scheme), which implements the Directive as an exception to copyright infringement.
Under the scheme, persons or organisations wishing to use an orphan work can apply to the IPO for a licence provided that they have first conducted a diligent search to try and identify the copyright owner. The IPO has published guidance for three broad areas of orphan copyright works: film and sound; literary works; and still visual art. This guidance includes details of the sources that applicants must consult and a non-exhaustive list of additional sources that might be helpful.
The licence, which is non-exclusive and applies only to UK use, permits the user, on payment of a reasonable licence fee set by the IPO, to carry out acts for commercial or non-commercial purposes that would otherwise infringe copyright in the UK for up to seven years with the possibility of renewal. The licence fee will be set taking into account fees charged for similar uses of analogous non-orphan works.
Licence applications will be processed electronically and the IPO will maintain a searchable register of applications, granted licences, and applications that have been refused. Copyright owners will be able to search the register and can contact the IPO to stop an application if a licence has not been granted, or if it is already licensed, to claim the licence fee that has been paid. The IPO must hold all orphan work royalties for eight years from the date of the licence and pay these to any copyright owner who comes forward during that period. There is also a discretion to pay royalties after the eight-year period has expired.
The IPO may refuse a licence if a proper diligent search has not been made, the proposed treatment, adaptation or alteration of the orphan work is derogatory, or if it would not be in the public interest to issue a licence. Applicants can appeal to the Copyright Tribunal. Complaints from persons not accepted as rights holders by the IPO may be a matter for the Intellectual Property Enterprise Court.
The objective of the licensing and clearance procedures created by the Regulations is to enable users to exploit cultural and commercial opportunities created by orphan works while also assisting copyright owners to benefit from potential licensing opportunities. Copyright owners who wish to ensure that their works fall outside the scope of the licensing regime should ensure that their identity is clearly and unambiguously made known on the work itself.
A parallel EU orphan works scheme also came into force in the UK on 29 October 2014. However, its scope is more limited: permitting cultural organisations in the EU to use orphan works for non-commercial purposes; for example, to digitally reproduce their collections and make them available to the public.
Source: The Regulations, 29 October 2014, www.legislation.gov.uk/ukdsi/2014/9780111117644; www.legislation.gov.uk/ukdsi/2014/9780111117682; IPO, Apply for a licence to use an orphan work, 29 October 2014, www.gov.uk/apply-for-a-licence-to-use-an-orphan-work.
First published in the December 2014 issue of PLC Magazine and reproduced with the kind permission of the publishers. Subscription enquiries 020 7202 1200