Out-Law News 3 min. read

Copyright owners to help set meaning of 'diligent search' in orphan works reforms, says IPO

Photographers and other rights holders will help define what constitutes a 'diligent search' for the author of copyrighted material as part of reforms to rules on 'orphan works' licensing, Out-Law.com has learned.

A spokesperson for the Intellectual Property Office (IPO) said that a "working group" comprising representatives from rights holders groups, as well as from museums and archives, have already met six times since September and that they would be involved in defining what a 'diligent search' means.

The working group is made up of representatives from 23 organisations, including the Association of Photographers, the Association of Illustrators, the National Archives and the National Museum Directors' Council. It is scheduled to meet again before the end of this month, the IPO spokesperson said.

Orphan works are copyrighted material, such as books, films and music, which have no identified owner. At the moment many orphan works lie in storage in libraries and other institutions and, because of copyright law, cannot be digitised or used without permission until the term of copyright expires. 

The Government has sought to make it easier for orphan works to be used, and, through the passing of the recent Enterprise and Regulatory Reform (ERR) Act, the Business Secretary has the power to set new regulations to govern the licensing of such works. The Act, though, requires that the licensing of orphan works only be legitimate after potential users of the works fail to identify who the rights holders are having conducted a 'diligent search' for the information.

Photographers have been among the most vocal critics of the Government's plans relating to orphan works. They have raised particular concern about current technology and practices that often result in information that identifies them as rights holders being stripped away from digital files. This, they have said, will result in their works being treated as 'orphans'. 

Last week the IPO responded to the criticism by stating that the stripping of author-identifying 'metadata' from digital files would "not in itself make a work 'orphan' or allow its use under the orphan works scheme". It has now confirmed that representatives from the photographic industry will be involved in defining what would constitute a 'diligent search' under the orphan works regulations.

"The ‘diligent search’ requirement will be defined through a working group so that it can reflect current best practice across all sectors," a spokesperson for the IPO told Out-Law.com. "This will make sure that any requirements are practical and manageable. The working group will include representation from creators, including the photography sectors, and users such as museums and archives."

Last summer the IPO outlined its policy intentions regarding orphan works licensing. Under those plans, orphan works would be able to be used for both commercial and non-commercial purposes.  

Under the policy, organisations that apply for an orphan works licence would have to conduct a 'diligent search' for the owner of orphan works before they could use the material and those searches would have to be verified as diligent by an independent authorising body. In addition, organisations would have to pay a "market rate" to use orphan works so as rights holders could be recompensed for the use of the works if they were later identified.

The IPO spokesperson has now confirmed that it will also issue guidance to help explain what a diligent search would constitute in the various creative sectors.

"The government appointed independent authorising body will be responsible for verifying that an applicant’s diligent search has been conducted in accordance with the requirements set out in the regulations and guidance framework," they said. "In compiling the regulations to follow, the government will look to build on the work that has already been undertaken in the area.  As the relevant sources that will need to be searched will differ across the various sectors, sector-specific guidance will be developed.  The applicant will have to show that their diligent search met the relevant requirements set out in the regulations and guidance.” 

In its policy statement last year, the IPO said that it "recognises that photographs often lack any information about rights holders or about the photograph’s age, original purpose, subject matter or country of origin" and that it "will necessarily take more time" to identify the owners of "complex works" containing "moving and still images, speech and music" than those "with only one type of copyright".

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