An orphan work relates to works protected by copyright, for example, an original photograph or an original work of art, where the name and/or whereabouts of the owner cannot be traced. This means that permission cannot be legally obtained to reproduce the work.
There are various countries such as USA, Canada, France, Japan and Denmark which have introduced an orphan work licensing regime to allow third parties to exploit such works.
The EU Directive on orphan works (2012/28/EU) required the UK to implement a licensed orphan works regime by 29 October 2014. The Enterprise and Regulatory Reform Act 2013 introduced this system in the UK and the regime is expected to be available during the course of this year.
Various steps must be taken to obtain a licence for an orphan work from the UK Intellectual Property Office (“UK IPO”). These are:
- Before applying for a licence, a “diligent search” must be undertaken to identify the owner of the orphan work.
- If the owner of the work cannot be identified, an application will need to be made to the UK IPO.
- The UK IPO will either grant or refuse a licence. Any licence is non-exclusive, applicable to the UK only and sublicensing is prohibited. The maximum length of time for a licence for an orphan work is seven years and thereafter a renewal of the licence is required (in which a new “diligent search” must be carried out). The licence fee has not been confirmed but a “reasonable licence fee” will be charged,
The UK IPO will keep an orphan works’ register listing details of the works that have been subject to a diligent search.
If the right holder reappears after an orphan work has been licensed, it is able to claim the remuneration for the relevant right. If the UK IPO is satisfied of its ownership, the work will no longer be listed as an orphan work and the fees will be paid to the owner. The licence will continue to exist for the remainder of the initial term.
Roy Crozier, a Partner in the intellectual property group, states, “This development is welcomed news for those who have struggled for many years to identify the owners of orphan works and obtain licences to use those works. It will open up a series of old copyright works for exploitation such as old photographs and pictures.”