Back in October we blogged about the threat posed to the the EU Orphan works exception by a no deal Brexit and the LACA campaign to highlight the issue.

A recent article in the Guardian highlights a concrete example of the effect of the removal of the exception, namely the case of the digital archive of content from Spare Rib, a ground-breaking feminist magazine. The Spare Rib archive has been made available online by the British Library (BL) using the Orphan works exception to good effect.

In the event of a “no deal Brexit” however the BL, in common with other cultural institutions, will no longer have the benefit of this exception simply because it can be enjoyed only by institutions in the EU (and the EEA) which, obviously, will no longer include the UK. Orphan works will no longer be covered by the exception and UK institutions such as the BL will be obliged to take down this very significant content to avoid the risk of copyright infringement.

The current process of vetting applications for orphan work status, moreover, is an EU process, run by EUIPO. The UK IPO could in principle establish a UK procedure to replace that run by EUIPO for the benefit of UK institutions, but seems to have no current intentions of doing so.  You can read what the IPO has to say about copyright and a no deal Brexit  here

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.

I was reminded recently about an exception tucked away in the Copyright Act 1956 Section 7 which permits the making of a copy of an unpublished literary, dramatic or musical work “…with a view to publication”.You could be forgiven for supposing the 1956 Act entirely redundant but this particular measure is preserved by Schedule 1 paragraph 16 of the current Act (CDPA 1988).

The main conditions are that at the time at least 50 years have elapsed since the end of the year in which the author died and at least 100 years since the work was created.  Also the work must be kept in a “…library, museum or other institution where…it is open to public inspection.”

This could be a way around the 2039 rule, which gives extended copyright protection to unpublished works, by allowing publication in certain specific cases. Section 7(7) of the 1956 Act goes on to confirm that publication of the whole or part of the unpublished work in these circumstances is not infringing.

A significant condition is added at 7(7)b: “Immediately before the new work was published, the identity of the owner of the copyright in the old work was not known to the publisher of the new work…” So in a way the exception only applies to “orphan works” although there is no explict demand for a diligent search (or even a not so diligent search).

My enquiry related to the letters of an artist who died in 1932, satisfying the 50 years test. The letters however were from the 1920s, which is too recent. In order to fulfil the conditions of the exception the unpublished work would need to be created no later than the first half of 1917.

On the other hand there could be many older unpublished literary, dramatic and musical works held by libraries, museums etc. where publication would be covered by the exception.

You may remember the libraries and archives campaign (supported by the UCL Library) to persuade the UK Government to reform the arcane rules which mean that a very large number of unpublished historical documents remain in copyright until 2039. The Government launched a consultation exercise on 31^st October last year to gather views on its proposal to change this aspect of copyright legislation. See previous blog posts on 21st August 2014 and 3rd November 2014. More information on the issues is available in a Briefing from the Libraries and Archives Copyright Alliance (LACA)

The 2039 rule causes many issues for cultural institutions wishing to improve access to historically interesting material. It also swells the ranks of Orphan Works (works in copyright whose rights owners cannot be identified or located) and also keeps  UK copyright law out of step with the rest of the EU.  The response from the cultural sector, including libraries and archives was very eloquent and persuasive in its arguments for the Government’s reform proposal.

Unfortunately, not persuasive enough for the Government, which has decided not to make the necessary changes at this time, see the Government Response to the Consultation. It was thought that the problems posed by removing the ownership of copyright from those who would otherwise continue to own rights in the material until 2039 were too great.

The Government was concerned that it would face challenges under Human Rights legislation for removing property from its owners. To be fair, they have not ruled out change in the future, it is rather the case that they cannot find an acceptable way of achieving the legislative changes at the moment.

Part of the problem is of course that for a large part of the “2039 material”, although it is in copyright, the ownership is far from clear, so the owners are unlikely to draw any benefit from their intellectual property and in that sense would not be losing out. However, some of those rights owners who are aware that they own “2039 material” argued strongly against the Government’s proposals.

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.

The Government has published its response to the consultation exercise on Extended Collective Licensing. ECL is the solution offered by the Intellectual Property Office to the copyright issues which prevent large scale digitisation projects in libraries, archives and museums. These are projects involving so many works that it would be impractical to carry out a “diligent search” in an attempt to identify the rights holder of each item. The solution would enable collective rights organisations such as the Copyright Licensing Agency to sell licences for large scale digitisation of works which fall within their area. This is achieved by allowing those organisations to licence the works of rights owners who are not actually their members.

There is of potential interest to any library contemplating a large scale digitisation project to make its collection more accessible, particularly if that collection includes a large number of orphan works. The Government aims to have the new regulations in force by 1st October 2014. The proposed 5 year initial limit on licences is likely to be a big issue.