HM Insights

Assistance for orphans

As a practicing IP lawyer who has worked for a prominent academic research organisation, in the music business, and who has been consulted by both the European Commission and the OECD on intellectual property and open access, I've encountered more than my fair share of issues relating to the reuse of copyright works where the original creator and rights holder cannot be easily identified – whether it be in the case of sampling, study data, or photographic images.

I know the risks that reuse of these items (so called 'orphan works') can pose, where permission cannot easily be obtained. I've seen action taken in a number of circumstances, often resulting in significant penalties for the reuser. I've also seen how this can result in people not seeking advice at all (as they know what they will be told), causing issue for their businesses and projects in other ways.

Though, let's not forget that allowing creators to build upon the shoulders of the efforts of their piers is hugely important.

The recent release of the text for a proposed EU Directive on orphan works was therefore very much welcomed by me.

So what did it actually say?

  • The Directive permits "publicly accessible libraries, educational establishments and museums, as well as...archives, film or audio heritage institutions and public-service broadcasting organisations" to do certain things. It does not extent to, essentially, private sector uses.
  • Orphan works are specified to include written, cinematographic or audiovisual works and phonograms, whose authors are unknown, or who are known but whose location is unknown.
  • The permitted organisations are obliged to carry out diligent searching prior to exercising their Directive rights. Such searching is to include the sources specified in the Directive's Annex, which are somewhat extensive. This may prove especially cumbersome
  • The permitted organisations will be entitled to make orphan works available to the public, and reproduce the same for the purposes of "digitisation, making available, indexing, cataloguing, preservation or restoration", but "only in order to achieve aims related to their public-interest missions", without infringing copyright.
  • They may earn revenue from these uses, but only to cover their costs in undertaking these activities. Again, the permissions granted are not in any way 'private sector' in any sense.
  • If rights holders reappear, they can put an end to the 'orphan' use, as one would expect.

So, whilst this is to an extent of assistance to certain people who may use orphan works, resolution of the vast majority of transactional issues that arise on a day to day basis will not be made easier. Those working in commercial music, or academic research and publication, will largely remain unaided. They'll have to wait for further developments.

And for those that do benefit (and there are some, public service broadcasters being one) remember – this is just a Directive – it directs Member States to implement laws – there can always be devil in the (local) detail.

The text of the proposed Directive is available at http://register.consilium.europa.eu/pdf/en/12/pe00/pe00036.en12.pdf.