Yesterday the Intellectual Property Office launched two initiatives to assist with Orphan Works. “Orphans Works” are copyright works, often held in collections of libraries, archives and museums, where the owners of the copyright either cannot be identified or if identified cannot be located. This makes reuse of those works very  problematic, since requesting permission is impossible.

The IPO Licensing Scheme  enables anyone to apply for a licence to use works commercially and non-commercially. We must confirm that we have carried out a “diligent search” in relation to each work we want to use. The licence fee per item for non-commercial uses is set at 10p per item. There is also an admin fee to cover the IPO’s costs, which is a minimum of £20 for one item, rising to £80 for a maximum of 30 items. The guidance from the IPO is helpful and there is further information on Diligent Search. Licences last for seven years and are renewable, but the limited timescale may create practical difficulties.

There is also the EU Orphan Works Directive, administered by the EU’s Office for Harmonization in the Internal Market which comes into force at the same time. This is more limited in scope, permitting “relevant bodies” such as publicly accessible libraries, educational establishments, museums and archives to digitise orphan works and make them available on their web sites. The scheme covers most types of  work but excludes stand-alone artistic works, such as paintings and photographs. The IPO is offering a (beta stage) eligibility check.

These initiatives are potentially very relevant for UCL but we need to look closely at the details to determine how useful they will be.

The new copyright exception for Caricature, parody and pastiche came into force on 1^st October 2014. The core provision is:

“Fair dealing with a work for the purposes of caricature, parody or pastiche does not infringe copyright in the work”

This is drawn directly from Article 5 of the EU Copyright Directive and some member states have been benefitting from the parody exception for some time. The recent Deckmyn case , was a reference from a Belgian court to the Court of Justice of the European Union. The case arises from the use made by members of a Flemish nationalist political party of an adapted version of the cover of a well known comic book in order to make a political point about the Mayor of Ghent.

The adapted version was distributed in the form of a calendar. The heirs of the creator of the original “Suske en Wiske” comic books claimed infringement of their copyright. Those distributing the calendar with the “parody” version claimed that their use of the work was covered by the exception for caricature, parody and pastiche.

The Belgian court referred a number of questions about the meaning of “Parody” in the context of the EU Copyright Directive to the CJEU. In response the Court makes various points about parody, including: “…the essential characteristics of parody, are, first, to evoke an existing work, while being noticeably different from it, and secondly, to constitute an expression of humour or mockery…”

One interesting aspect of Parody exception is the potential clash with the author’s moral right to be protected from derogatory treatment of their work, although the Court was not asked to address this question. One person’s parody could be another person’s derogatory treatment.