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Copyright changes - who would want to be an orphan?

Published on Wednesday, 30th January 2013
Parliament is currently debating a bill on copyright, but it appears that this issue is causing its own debate outside Parliament in relation to 'orphan works'. Jessica Bent, Intellectual Property and Media Specialist at Withy King takes a look at the issue.

Parliament is currently debating a bill on copyright, but it appears that this issue is causing its own debate outside of Parliament in relation to ‘orphan works’.

The Enterprise and Regulatory Bill is looking to reform the law on copyright, amongst other areas, to benefit the way in which businesses operate. This covers ‘orphan works’. An ‘orphan work’ is a work protected by copyright, but where the owner is unknown.  Contrary to what many people believe, it is currently unlawful to use ‘orphan works’ although organisations do sometimes use orphan works accompanied with take down wording.  If the true rights holder then comes forward, the organisation would then remove the content. 

The proposed schemes are looking at ways to legalise the use of orphan works by introducing mandatory safeguards for organisations to take if they wish to use protected works. 

The proposals under the Bill include: organisations undertaking diligent searches to ensure that the owner of the work cannot be found and setting aside sufficient compensation at a rate comparable with the use of similar work. Once these safeguards have been met, businesses can benefit from ‘voluntary extended collective licensing’ to enable use of the protected work, which will be governed by a licensing organisation. Licenses of ‘orphan works’ will be available for commercial and non-commercial purposes.

Where the owner of a protected work is known but cannot be located, the owner will be entitled to be credited whenever that work is used. If the protected work remains an ‘orphan work’ there will need to be a notice to potential owners so that they are aware of who to contact to regain control of their work and claim the remuneration that should be set aside for its use.

While the ‘orphan works’ scheme is designed to support legitimate use of copyright work, these proposals have caused a debate within the creative industries as large organisations and independent users of copyright work are worried that the new proposals will devalue the price of their work.

Much of the debate has suggested that users will be able to strip out metadata from images or that people will lose their rights to images uploaded to Flickr (for example).  However if images did have metadata stripped, this is an offence under the existing law and in relation to images which are uploaded to social media sites – these are automatically protected by copyright. If the image owner can be found, then an organisation could not benefit from the new orphan work regime.

Ultimately, the Intellectual Property Office has expressed concern that there is considerable value and cultural content tied up in orphan works, which could be unlocked if new law was brought in.  In particular, the Imperial War Museum has a wealth of photographs where the rights holders are unknown – perhaps our culture and economic growth would be enhanced if this content could be used.