Orphan Works: When is a “Diligent Search” diligent enough?

The Intellectual Property Office (IPO) has just published its Guidance and Checklists tackling the question, what does a diligent search look like? This is in preparation for new Regulations introducing an Orphan Works Licensing Scheme to be run by the IPO, due to be introduced on 29th October 2014.

The new scheme will enable people to apply for a licence to use an Orphan Work for a specific purpose, which may be commercial, such as an advertising campaign or completely non commercial. The IPO has previously undertaken to have variable pricing depending on the exact use being made of the work. This should make the scheme affordable for non commercial projects. In principle any type of copyright work in any medium could be included

On the face of it, the IPO takes any legal risk from newly emerging rights owners on its own shoulders when it issues a licence. Quite understandably the IPO want to be sure that efforts to locate copyright owners have been sufficiently exhaustive. Hence the new Guidelines set out in detail the kind of checks which would be appropriate for Films and Sound, Literary Works and Visual Art. The information in the new Guidance is very useful, but when it comes down to it, each Orphan Work which we might want to use will be slightly different, so it is difficult to generalise about requirements.

The IPO’s response to real life examples of requests for reuse will be the proof of the pudding and it will be interesting to see how much flexibility will be exercise with respect to what is already known about the work and the range of sources which it is reasonable to investigate. In any case the new scheme should be welcomed as a real step forward in addressing the problems posed by Orphan Works.