One of the enduring problems for people wanting to use third-party copyright material is what to do if they either don’t know who owns the copyright in that material, or they can’t work out where the copyright owner is and how to contact them.
Copyright lawyers refer to this type of material as an “orphan work” – and if you want to use such a work, you can still rely on exceptions in copyright legislation to do so, but if you need a permission, you face a stark choice as to whether you will take the risk of the copyright owner showing up and objecting) or whether you will use something else.
The UK has now followed Canada in rolling out a licensing scheme for orphan works.
From 29 October 2014, people wanting to use an orphan work in the United Kingdom can get a licence from the UK’s Intellectual Property Office (IPO) to do so, provided they can first show that they have conducted a “diligent search” and that they also pay a licence fee, determined by reference to commercial rates. The application is made electronically, and the register of orphan works will be fully searchable by copyright owners looking to reclaim their works, and to be paid the licence fee held on their behalf.
The IPO has developed a “diligent search” guide to assist people assess whether or not their search has, in fact, been diligent, and an administrative fee will also be payable by people wanting to apply for a licence. This will cover the costs of the scheme.
The new orphan works licence scheme comes into operation beside other amendments to copyright law in the UK that commenced on 29 October 2014 – exceptions to permit cultural institutions (such as museums and galleries) to digitise orphan works in their collections to post them online for non-commercial purposes only. The two schemes are complementary, so as to cover both cultural and commercial purposes.
How to deal with orphan works under Australian copyright law has been an ongoing source of discussion (including in reviews such as that conducted recently by the Australian Law Reform Committee), but as yet no plans to introduce any similar or other schemes into Australia have been announced.
For further information on the scheme, see: