The EU Orphan Works Directive (2012/28/EU) which has recently been implemented in the UK, establishes a new exception to copyright . It permits cultural bodies such as publicly accessible libraries, educational establishments, museums and archives to digitise orphan works and make them available on their websites.
There is an application process to be used when making use of this exception. In the case of the UK, applications are made to the Intellectual Property Office (IPO). The relevant webpage appears to be still in a beta phase. Applicants must demonstrate that they have carried out a “diligent search” in their attempt to track down the copyright owner.
A database of works accepted as orphans across the EU has been set up by the Office for Harmonisation in the Internal Market (OHIM) – based in sunny Alicante. National authorities – such as the IPO – are responsible for vetting applications and supplying the information to OHIM to be added to the database. Libraries who want to clear an orphan work should first check the database.
This covers most types of work but excludes stand-alone artistic works, such as paintings and photographs. A copyright owner who comes to light subsequently may claim “fair compensation” to be agreed with the body using their work. If they are unable to agree, either party may apply to the Copyright Tribunal to decide upon the amount.
Interestingly, we may generate revenue from the digitisation of orphan works, under the Directive, as long as the money is used solely for the purpose of digitising and making available orphan works.