Copyright is a right which arises automatically upon creation in original literary, dramatic, musical or artistic works. The current law is embodied in the Copyright, Designs and Patents Act 1988 (the CDPA) which gives the owner of the copyright or "right holder" exclusive rights to exploit those works, including by copying them or communicating them to the public.
As with any copyright protected work, if you wish to use a work, you should seek permission from the right holder in order to avoid copyright infringement.
Copyright does not disappear simply because the right holder cannot be found. Works in which copyright exists, but where any one or more of the rights holders are not known or cannot be located, are referred to as “orphan works”.
"Orphan works" can be any copyright works (such as photographs, journals, diary entries, film or music, which publishers may wish to incorporate in their publications) which (i) still benefit from copyright protection and (ii) the right holder is unknown, untraceable or uncontactable after conducting diligent searches.
The orphan works licence regime
The Copyright and Rights in Performances (Licensing of Orphan Works) Regulations 2014 ("Licensing Regulations") were introduced to bring into effect The European Union’s Orphan Works Directive (Directive 2012/2/EU) and provide for the licensing of orphan works within the UK for both commercial and non-commercial use where, after diligent searches, it has not been possible to trace the right holder.
An orphan works licence (i) can be sought by anyone wishing to use an orphan work, (ii) applies to all types of works, and (iii) would allow any type of use for which the right holder’s permission would otherwise be required.
The UK Intellectual Property Office (IPO) is the independent licensing body of orphan works on behalf of the UK government, whose powers were granted under the Enterprise and Regulatory Reform Act 2013. Effectively the IPO steps into the shoes of the absent right holder(s) in respect of the orphan works.
An orphan works licence only applies for non-exclusive use in the UK for commercial or non-commercial purposes. The licence term can last up to seven years which may be renewed.
Applying for an orphan works licence
Applications for an orphan works licence are only available online from the IPO and can cover up to 30 works. An applicant must perform a diligent search for each of the right holders prior to a licence being considered. Those searches will need to be carried out to the satisfaction of the IPO. After you have applied, the IPO will notify you by email to acknowledge receipt of your application and thereafter check that adequate diligent searches have been made. The details of your application are uploaded into the orphan works register. Applications are typically processed within 10 working days, depending on the complexity, number of different works and number of different possible right holders.
If successful, you have the option to refine the scope of the application. The IPO may refuse to grant a licence where use of the work might be derogatory or otherwise inappropriate.
Once you have confirmed which works you want to use, the IPO will issue the licence with a set of standard terms and conditions.
If a licence is granted, whenever you use the orphan works you will need to (i) provide contact details for the IPO, (ii) include the orphan works application number, and (iii) credit the right holder if you know their name.
The IPO can only grant a licence in relation to unknown or uncontactable / locatable right holders. Where you have located some but not all the right holders these are considered to be partial orphan works.
Further guidance issued by the IPO can be found online.
Considerations prior to diligent searches
Who is the author?
Where the work in question was created by an author domiciled in the UK, a diligent search will need to be carried out to the satisfaction of the IPO, or, resident elsewhere, to the satisfaction of the relevant authorising body in the relevant territory. Consider where you will need to search and what authorising bodies are relevant.
Is the author is still alive? If the author could not reasonably still be alive, you may need to search for their heirs.
The work may attract multiple rights, for example literary works include print publication rights, digital or electronic rights, dramatisation rights, audio rights and translation rights. Each of these rights may be controlled by different right holders and / or have more than one right holder i.e. there be multiple right holders for a literary work. A diligent search is needed for each right holder where the right is relevant to the proposed use. For example, the rights in published literary works will often be owned by the author and sometimes controlled under licence by the publisher, in which case both are right holders.
When was the work first created, published or broadcast?
The date of first publication, broadcast or creation in the UK, will be relevant in determining copyright term.
Is the work still protected by copyright?
The term of copyright protection is limited. The exclusive rights of a copyright owner are enforceable against others only while the term of the protection lasts.
The term of protection or duration of copyright varies depending on the type of copyright work. Typically copyright for literary works lasts for the life of the author plus 70 years, or, 70 years from the end of the year in which the works are first published.
Who holds the rights in the work now?
The right holder may not always be the author or creator of the works.
Ownership of copyright can be transferred, assigned or vest in someone else by matter of law (e.g. if produced by an employee in the course of their employment or due to inheritance or intestacy), therefore the author may not be the right holder responsible for authorising the use of the work.
Where did you find the work?
The provenance and source of a work can provide useful information on the right holder, i.e. where did you obtain the work in question. This will inform the scope and type of diligent searches required. The IPO and European equivalents maintain an orphan works database which can be searched to see if anyone else has previously completed a diligent search on the work and / or to determine if the work has already been identified as an orphan work. It is worth checking this.
Proposed use of the work?
You should consider why you want to use the orphan work and consider if there is a non-orphan work you could use instead where the right holder is known and locatable (or even whether you should commission a new work). You should also consider whether your intended use of the work falls within one of the exceptions to copyright, those exceptions include:
- Non-commercial research and private study;
- Text and data mining for non-commercial research;
- Criticism, review, quotation and reporting current events;
- Producing accessible-format copies for disabled people; and
- Parody, caricature and pastiche.
In respect of orphan works only, cultural and heritage organisations are permitted to digitise certain types of orphan works in their collections and to make them available to the public on their websites.
Conducting diligent searches
According to section 4 (3) of the Licensing Regulations, reasonable searches of "relevant sources" must be conducted to identify and locate the right holder who controls the appropriate rights for the proposed use, including (as a minimum) a search of:
- UK orphan works register
- EU orphan works database
- Sources identified under Part 2 of Schedule ZA1 of CDPA 1988;
- A non-exhaustive list of additional sources - The IPO has issued guidance for different types of works.
Actions to take
There is no set minimum requirement to be followed in every case. Applicants will need to show that their search was indeed diligent and submit supporting evidence to the authorising body which, in the UK, is the IPO.
The guidance states that where there are multiple right holders a diligent search is needed for each right holder where the right is relevant to the proposed use, carried out to the satisfaction of the IPO. If possible, in the first instance, contact the author, who may direct you to who holds the rights in the works.
Ideally the information about the right holder should be supported or validated by multiple sources.
Applicants must complete and submit the diligent search checklist with each application and maintain a record of the diligent search. A diligent search is valid for 7 years and must be updated after this period if you still wish to rely on it for licensing purposes.
If the orphan work relates to performances, sound recordings, photographs or film, and is available to the public on the internet or accessible to the public, then publishers and collecting societies are likely to hold relevant information regarding the right holder.
Crown copyright and parliamentary copyright holds a longer term of copyright protection and relates to works made by officers or servants of the Crown in the course of their duties, e.g. civil servants, ministers and government departments and agencies.
If the right holder is outside the UK, you will need to contact the relevant licensing authority in that territory and conduct further diligent searches.
If a right holder does not respond to your efforts to obtain consent to use the works, work cannot be declared an orphan work. It is the right holder's exclusive decision whether or not to respond and /or to grant permissions.
The IPO is entitled to charge a reasonable licence fee for the licence term based on similar use of similar works by a known right holder plus an additional fee in respect of its administrative costs.
Application fees range from £20 for one orphan work, to £80 for 30 works. The application fees are non-refundable, payable only by credit or debit card.
Licence fees are payable when you confirm you agree to the terms of the licence. The licence fee will vary depending on the types of orphan work you want to use and what you want to do with them.
Administration of the licence fees
The IPO holds the licence fees for 8 years, following which if no right holder comes forward to claim the remuneration, the IPO can use those fees to pay its reasonable administration costs. Any surplus licence fees remaining can be used for "social, cultural and educational purposes".
If granted, the orphan works licence allows the licensee to reproduce the orphan works lawfully and limits the risk of claims of copyright infringement. There is always the possibility of a right holder emerging and enforcing their copyright in the work, however the consequences of this are likely to be less significant if you have carried out due diligence and obtained an orphan works licence, than using the works without any permission or rights clearance.
What if the right holder is subsequently located or comes forward?
There is a presumption that absent right holders have asserted their moral rights, i.e. the right to (i) be attributed as the author of the work and (ii) object to derogatory treatment of a work.
The holder of a relevant right in an orphan work may come forward at any time. This will put an end to the orphan status of the work in so far as his or her rights are concerned.
Emerging right holders are generally entitled to the licence fee paid, and whilst the licence will generally continue for its term, any further or new access will require separate negotiation with the rights holder.
If you choose not to obtain an orphan works licence it is strongly recommended that you:
- clearly document the searches conducted, the names of any right holders identified and all attempts to contact right holders;
- risk assess the implications and consequences of reproducing or adapting the work without permission and ensure that this is reflected in any budgetary considerations based upon the perceived level of risk associated with the use of the work;
- include a prominent, visible disclaimer regarding your efforts to trace the copyright holder and obtain their permission; and
- ensure there is a policy and procedures for removing the works if required.
Get in touch
If you would like to discuss obtaining an orphan works licence or enforcing copyright in your own works, please get in touch with a member of the team at Harper Macleod LLP.