Orphan Works: The New Licensing Scheme
What is an Orphan Work?
If you want to use a work protectable by copyright (an image, document, book, audio or audio-visual work), but you do not know who created it or who appears in it (like a person in a photograph) then it may be an Orphan Work. Using an Orphan Work for a commercial or non-commercial purpose without the permission of the creator and the subject of the work might result in the infringement of copyright or image rights, subject to certain exceptions. Millions of pieces of content ranging from video and sound recording to photographs and artworks are “orphans”, including 150 miles of shelved documents in The National Archives and National Records of Scotland, where up to 40% of the content is suspected Orphan Work.*
Until recently, problem Orphan Works left large amounts of content unavailable for use.* To address the issue, and to allow a fair and regulated use of the huge number of Orphan Works, amendments to legislation were initiated to allow for approved authorisation on a regulated basis, known as the Licensing Scheme.*
Licensing Orphan Works: the Licensing Scheme
Unlocking the vast potential of Orphan Works has been a focus of the copyright regime.* Since October 2014, the Licensing Scheme, introduced via the Enterprise and Regulatory Reform Act passed in 2013, provides a way to reproduce these works lawfully in the UK.5 To secure a licence under the scheme run by the IPO you must:
- undertake a Diligent Search
- pay the correct fees
- consider whether your intended use for the works falls within one of the exceptions
(1) What is a Diligent Search?To reproduce or license a copyright work, you need to try to find the rights holders for that work, and then to contact them for permission to use the work. Before any work can qualify as an Orphan Work you must carry out a thorough search for the copyright owner to be verified by the IPO.* If you cannot locate them, or the identity of the rights holder, then you can apply under the Licensing Scheme.
Your Diligent Search must cover all the appropriate rights holders for the categories of intended use. For example, a literary work may need the permission of both the author and the publisher.* The Government has provided guidance on requirements for searching content including film and sound, literary works and still visual arts.*
The right to use Orphan Works will only be granted if you cannot find the owner after a Diligent Search.
(2) How do I apply under the Licensing Scheme and what will it cost?
Fees charged by the Intellectual Property Office (IPO):
(a) Application fee: this ranges from one work at £24 to thirty works at £80, with a clear emphasis on helping the custodians of large collections of Orphan Works
(b) Licence fee: payable to the IPO when an application is accepted. The fee is calculated by reference to the nature of the Orphan Work and its intended use: price is “on application” but is calculated by the IPO on standard license terms at standard market rates. The fees are then held by the IPO on behalf of the absent rights holder(s).
(3) What are the exceptions to the requirement for an Orphan Works Licence?
Where copyright has expired: in the UK, this is usually the creator's life plus 70 years, or 50 years from first broadcast for audio-visual material with no identifiable creator)
Non-commercial exceptions: non-commercial research and private study and text and data mining for non-commercial research; criticism, review, quotation and reporting current events; parody, caricature and pastiche; teaching; producing accessible-format copies for disabled people.
Conclusion The introduction of an appropriate Orphan Works Licensing Scheme has been long overdue and the Licensing Scheme aims to promote creativity and innovation by allowing new uses to be made of Orphan Works, whilst at the same time protecting the interests of their copyright owners.
1. Impact Assessment Report on Orphan Works - Department of Business, Innovations and Skills, June 2012
2. Hargreaves, Ian. 2011. Digital Opportunities: A Review of Intellectual Property and Growth. London: Intellectual Property Office and Gowers, Andrew, 2006, Gowers Review of Intellectual Property. London: HM Treasury.
3. Intellectual Property Collection, Orphan Works Guidance, updated 30 November 2015, https://www.gov.uk/government/collections/orphan-works-guidance
4. Impact Assessment Report on Orphan Works - Department of Business, Innovations and Skills, June 2012
5. Orphan Works Licensing Scheme: Overview for Applicants, IPO, 29 October 14: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/450649/Orphan_Works_Licensing_Scheme_Overview_for_Applicants.pdf
6. Intellectual Property Office, appointed as the independent licensing body for orphan works within the UK, https://www.gov.uk/government/organisations/intellectual-property-office
7. Orphan Works Licensing Scheme: Overview for Applicants, IPO, 29 October 2014 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/450649/Orphan_Works_Licensing_Scheme_Overview_for_Applicants.pdf Orphan Works Diligent Search Guidance, IPO, 2014, see website for publication on the different uses https://www.gov.uk/government/publications/orphan-works-diligent-search-guidance-for-applicants