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.

Now that both the IPO’s licensing scheme and the EU Orphan Works Directive are available, it will be interesting to see how user-friendly they really are. If you have any UCL projects in mind where we could test the licensing procedure with a limited number of orphan works, please do let me know.

We will be eager to see examples of successful use of the new licences but currently there are no applications to view on the IPO Register of Orphan Works. There is a lot of background information on the IPO website. The Orphan Works Licensing Scheme Overview for Applicants includes details of charges and full Terms and Conditions of the Licence. A big unknown is what the IPO will accept as a “diligent search” for the copyright owner in specific cases, although there is plenty of information on sources for a diligent search on the IPO website.

The admin charges start at £20 for one item but rises only to £80 for 30 items, that being the maximum which can be included in a single application. For non-commercial uses the licence fee itself is 10p per item. For this purpose the IPO uses a definition of non commercial which excludes charging to recover costs (see paragraphs 35 to 37 of the “Overview” linked above).

Licences last for seven years with the potential for renewal. Licences cannot be longer term because of the possibility of a copyright owner emerging after the grant of licence. In that eventuality the licence would run its term but would not be renewable. The IPO is in effect indemnifying us, the licensee, against action by the copyright owner, as long as we have given them accurate information.

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 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.