Change in law opens door to offlimits creative work

Copyright holders of creative works are being urged to make their mark and claim their intellectual property rights, following the launch of a new licensing scheme that will enable reproduction of so-called ‘orphan’ creative works and performances.

Orphan works are copyright works where the right holder is unknown or cannot be traced. In the past this meant the works could not be reproduced.  Now, it is possible for anyone to apply to the Intellectual Property Office (IPO) for a licence to use an orphan work if they can show they have made genuine efforts to identify or trace the holder of the copyright.  A fee is payable, and royalties will be held by the IPO for eight years in case rights holders come forward at a later date.

The scheme will enable creative works and performances, such as diaries, photographs, films or pieces of music, to be reproduced via websites, books and television, whether for commercial or non-commercial purposes.   Without the licence, any such reproduction would infringe copyright in the UK.

A licence will provide rights for up to seven years, and will be designed to give wider access to creative works deemed culturally valuable, which may have previously remained out of public view because the rights holders could not be identified.

The IPO will hold all royalties it receives for orphan works in a ring-fenced account for eight years from the date of the licence, thereby providing protection for copyright holders.  It can also refuse to grant a licence where, for example, any proposed use could have a negative impact on the value of the work.

The announcement of the new licensing scheme coincides with the introduction of the EU Orphan Works Directive, which enables museums, galleries and other cultural institutions across the EU to digitise certain orphan works and display them on their websites.  The aim is to widen access to Europe’s cultural heritage for works that are currently only available for viewing in a museum, archive or library.

The UK licensing scheme and the Directive are complementary but separate.  Unlike the EU directive, the UK Orphan Works licensing scheme applies to all types of orphan works and provides for broader commercial as well as non-commercial use. It can be used by anyone and is not just restricted to cultural and heritage bodies.

A corporate and commercial solicitor at Ashtons Legal, commented:  “There are potential commercial benefits for users of these orphan works under the new licensing scheme, although some parties, such as photographers, have raised concerns about licences being granted after only cursory attempts to find the original rights holders. Hopefully a stringent application process, combined with the fees that will be payable and the fact the royalties will be held by the IPO until for eight years (so until after any licence has expired) will provide adequate protection and ease these concerns.

“If copyright owners want to be sure that their works are not subject to any attempts at future licensing under this new regime, they should make sure that their identity is well known, ideally by clearly including it on the work itself.  Whilst not always practical, it iss always important to consider your intellectual property rights when creating or holding such content.”