Orphan works – copyright framework to be updated for the digital age

You may remember last year that legal action was raised in the US for copyright infringement in relation to Google’s digitisation project that made thousands of books held in major US libraries available online.

The action stemmed from the fact that a number of the books made available by Google were by unidentified authors whose authorisation (by definition) Google had not obtained, and so technically they had no licence to use the works.

Copyright law in the UK
These unidentified “orphan” works, share a similarly precarious position in UK copyright law. In the UK, copyright automatically attaches as soon as a copyright work (a painting, film or book, for example) is created. Copyright does not last indefinitely, but generally runs until 70 years after the death of the creator.

If you want to use a work that is currently within copyright and your proposed use does not fall within one of the express pemritted exceptions set out under the Copyright, Designs and Patents Act, then you must obtain permission from the copyright holder. If you don’t then you will be infringing their rights and you could be sued for copyright infringement. 

Orphan works
Obtaining a licence is, on the face of it, a relatively straightforward process if you know who the copyright holder is (although agreeing a licence fee may be less so). But what if the photograph or the piece of prose you want to use is anonymous or you simply can’t track down the copyright holder or identify how old the work is? How much investigating are you required to do to protect yourself from an infringement action should the copyright holder surface further down the line?

The answer is, well, unclear. There is no set level of diligence that is required and no right to freely use orphan works. This failure of the current legislative framework was addressed in the Hargreaves Report.

As detailed in the Hargreaves Report, the problem of orphan works affects larger digitisation projects more acutely that it does one-off use. Many institutions responsible for archiving, such as the British Library or the British Museum, are digitising their catalogues for preservation purposes but risk copyright infringement in relation to the more obscure, anonymous, works that are most often in need of preservation.

Projects that aim to broaden the audiences of certain works such as the BBC’s Public Catalogue Foundation face the same problem. The Hargreaves Report estimates that 40% of the works to be catalogued in these digitisation projects would be classified as orphan works.

New legislation
At a European level a common approach to deal with orphan works has now been agreed in principle to allow public institutions to carry out digitisation projects legally. The finer details have not yet been released, but the key aspects of the proposed clearance procedure cover diligence requirements and compensation.

The proposed legislation would require a “diligent” search to be carried out in good faith to identify the copyright holder before the work could be classified as an orphan work. Importantly, if classified, the work would then officially be given orphan status on an EU-wide basis.

If a work was given orphan status, but the copyright holder was then identified at a later date, compensation would be payable (at a level to be set on a case by case basis, taking into account any damage to the author’s interests and the fact that the use is non-commercial) with special provisions around public institutions to protect them from the risk of having to pay out large sums. The draft directive also allows institutions to monetise the orphan works to recover the costs of the digitisation process.

Next steps
The next step is for the draft directive to be formally approved by the various EU institutions, and it is expected that this will happen in the coming months. Once implemented, the new rules will give this area of law (in the EU at least) some much needed, and much welcomed, clarity.

Leigh Kirktpatrick

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