By ucylcjh, on 16 October 2018
The UK IPO has made it clear that in the event of a no-deal Brexit it intends to amend the Orphan works exception out of UK copyright legislation. Yet this is a very useful exception which permits a range of cultural institutions including libraries, archives, film heritage bodies and universities to make orphan works from their collections available online. The distinctive feature of orphan works is that the owners of copyright in the work cannot be identified (or if they can be identified cannot be located) so that there is no possibility of seeking permission.
The exception (introduced by the EU in its Orphan works directive and then implemented in the UK in 2014) is easily justified and very useful to cultural institutions planning to make significant collections available online. The details can be found in Schedule ZA1 of the Copyright, Designs and Patents Act 1988. Anyone using the exception must first carry out a “diligent search” for rights-holder information to ensure that the work in question is really an orphan work and then register it with EUIPO (the EU Intellectual Property Office). So far UK institutions have been big users (“beneficiaries” in EUIPO terminology) of the exception. According to the database the BFI and the BL have registered the largest number of works.
The exception could easily be retained in the UK legislation in the event of a no-deal Brexit. The “diligent search” guidelines which also apply to the IPO’s separate licensing scheme will need to be retained in any case. A UK registration procedure would need to replace the function of the EUIPO database, but the data recorded for each item is quite succinct and the task is not particularly complex. If your institution is already using the exception or just thinking of using it then LACA (the Library and Archives Copyright Alliance) would really like to know. This is a link to the LACA campaign flyer. You may also wish to let the UK IPO know about your concerns or pose any questions you may have about their plans for the Orphan works exception.