How Do You Use Orphan Works After Brexit? Here’s How

What Are Orphan Works?

It is not unusual for authors and editors to quote from a literary work or find an image that fits their use perfectly, only to discover that they cannot identify the copyright holder to grant them required permission. Under copyright law, if a work is still in copyright (copyright term is different for different types of works), permission is needed to use the work, even partially, in a new work. It is possible that the quote or image can be used under one of the exceptions to the copyright law’s expansive provisions but more often than not permission will be needed.

In some cases, the work may fall in the Orphan Work category. ‘Orphan works’ are works in which copyright still subsists, but where the rightholder, whether it be the creator of the work or successor in title, cannot be located.’

Using Orphan Works

Early in the second decade of the 21st century, there was a movement towards assessing the untapped value represented by orphan works, held largely in cultural institutions like libraries and archives . The Hargreaves Review of Intellectual Property & Growth (2011) in the U.K. recommended that there should be a regime to enable limited exploitation of such works. However, until 2013 it was not possible to copy orphan works legally. This made it impossible not only for individuals but also for institutions, such as libraries, to copy such works even for the works’ own preservation (p.68).

Since 2014, an orphan works’ licensing scheme has been in existence in the U.K. Under it, the Intellectual Property Office (IPO) can licence an orphan work for use by charging a fee that is reserved for the copyright holder to claim over the next 7 years. The process of licensing, however, can be long and expensive, so it should be carefully considered whether a substitute work can serve the purpose instead.

Prior to applying for a licence for an orphan work, a ‘diligent search’ needs to be undertaken to locate the copyright holder or all the copyright holders, if there is more than one. A diligent search can be a waste of time and resources in some situations, but a sleuthing adventure piecing together disparate clues in others. This usually depends on the time, budget, manpower and inclination involved. For further insight on the way that this is done, see a detailed example from Kerry Patterson, Ronan Deazley and Victoria Stobo of the process involved when they tried to clear rights for the digitization of Edwin Morgan Scrapbooks. For the end result, including identification of source and assessment of risk, which still remains an important part of rights clearance, see a page from the scrapbook as displayed on the internet.

Records need to be kept of the diligent search for presenting at the time of applying for the licence. There are long, but not exhaustive, checklists of sources to search, broken down into different categories of works, available from the IPO. These can prove very useful as guides.

The licence granted by the IPO will last for up to 7 years and will be non-exclusive. It will also require an acknowledgement of the missing copyright holder. The IPO licence can be granted for the use of one or more orphan works in a commercial or non-commercial work. The fees set are fairly reasonable but they do vary depending on the type of work being licenced.

Changes Due to Brexit

Brexit has impacted the using of orphan works by individuals and institutions in the U.K. Since 1 January 2021, it is no longer legal for cultural institutions to make orphan works available under the Orphan Works exception of the earlier EU law that governed this area. They need to apply for a licence from the IPO for such use. Even works made available prior to this change fall under the new provision and licensing needs to be carried out afresh for their continued placement online. Limiting access to U.K. users can mean avoiding infringement of copyright laws in EEA countries. It is, however, still possible to rely on other copyright exceptions for making works available online beyond the U.K. borders and the matter should be considered on a case-by-case basis.

Disclaimer: The advice on this page is based on my long experience in the publishing industry; it does not substitute for legal advice.

Image courtesy 愚木混株 cdd20 on Unsplash