UK Orphan Works
Earlier this year, the UK government passed an act (Enterprise and Regulatory Reform Act 2013 or ERR) which appeared to provide private companies with the option to freely use a piece of artwork found online if they could not find its creator after a ‘diligent search’. This generated a great deal of anxiety amongst the artistic community, accompanied by suspicion over a ‘Copyright Hub’, which would serve as a directory for registering works, funded by users.
It seemed that the intellectual and financial ownership of our own creations was under threat, with artists having to make a choice between paying to secure their own legal rights, or risk the abuse of their work and legal battles where it would become the artist’s responsibility to prove the lack of diligence on behalf of the publisher.
A petition asking the government to reconsider the implications of the act recently reached 27,800 signatures and the government issued a formal response. You can read the full response here: http://http://epetitions.direct.gov.uk/petitions/49422
- An Orphan Work is a copyrighted work (book, music, artwork etc) for which no copyright owner can be found.
- Absence of metadata does not cause a work to become orphaned and removing existing metadata is a civil infringement in UK law.
- Under section 77 of the ERR, the Government will set up a body to license the use of Orphan Works.
- Publishing an unlicensed Orphan Work or claiming ownership of an Orphan Work may be criminal offence (potentially under the Fraud Act 2006).
- Anyone wishing to use a believed orphan work must perform a ‘diligent search’ to try and locate the author.
- If no author is found, the details of the diligent search must be submitted to the government licensing body for Orphan works, who will check that the search meets the necessary legal requirements.
- If approved, the licensee must then pay a fee to the governing body, based on what they wish to use the Orphan Work for. A license will then be issued for that specific use only.
- The license fee will then be held by the licensing body, which the author can then come forward and claim (presumably within an as yet unspecified time period).
If this is administrated as described, it creates one very important advantage that was not originally clear; that the use of Orphan Works will not be free. The combination of license fee and the checks against diligent searches means that the use of Orphan Works is unlikely to be financially attractive over traditional art-sourcing. Certainly, the feared process of stripping metadata and creating weak ‘diligent search’ processes to make free use of work will not be worth the trouble.
So, the question remains – is this sufficient reassurance that the ERR will not adversely affect the intellectual property, creativity and financial security of artists? Until we see the licensing body in action, this artist remains unsure, but cautiously optimistic.