Government considers whether orphan works licenses should be transferable

Out-Law News | 25 Feb 2014 | 9:56 am | 3 min. read

The UK's Intellectual Property Office (IPO) is consulting on whether to allow those with a licence to use so-called 'orphan' works to transfer their rights of use to others.

The IPO, which exists within the UK government's department for Business, Innovation and Skills, is seeking views on the issue within a consultation it is running on plans for new regulations governing the licensing of orphan works.

Orphan works are copyrighted material, such as books, films and music, which have no identified owner. Last year the UK parliament passed new laws that allow the Government to introduce new regulations to govern the licensing of such works.

The IPO had previously published a policy paper in which it outlined its intention to allow orphan works to be used for both commercial and non-commercial purposes in accordance with certain conditions.  

Now the IPO is consulting on how the new regulations should look, and has asked for views on whether orphan works licenses should be transferable. The consultation (120-page / 896KB PDF) closes on 28 February.

"Sub-licensing is not permitted under the orphan works licensing powers, but there is a question of whether a licence should be transferable, and if so, in what circumstances," the IPO's consultation said.

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. 

Under the IPO's policy, organisations that want to use orphan works 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 independent authorising bodies. 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's recent consultation confirms that the IPO will operate as the authorising body for all licensing of orphan works in the UK, although it has asked for views on whether the "expertise and knowledge" of collecting societies – bodies which gather royalties from the use of copyrighted material on behalf of rights holders – could be utilised within the licensing regime.

The IPO has also asked whether the new regulations should set a time limit within which rights holders should be able to take hold of unclaimed fees generated through the use of their works during the time they were orphaned.

"There are various models that can be considered in determining for how long rights holders could claim monies and when Government should take control of the funds," the consultation states. "For example, the statute of limitations for making claims for the adverse possession of land is 12 years in many cases, but with some longer periods in others. Alternatively, the Government can use money contained in dormant bank accounts after 15 years but retains a liability for any claims in perpetuity."

"Another factor to be considered is the possible lifespan of missing rights holders. This is why copyright generally lasts for the life of the author plus seventy years – that is to cover the lifetime of the author plus at least one generation. It may be appropriate to limit liability for one generation, which is for seventy years from when the licence was issued. It would be simpler to apply the same time period for when the Government can take control of the money and when the liability to the rights holder ceases. If the liability continues beyond the time when the Government can distribute the money, records still need to be maintained for very long periods of time, if not forever," it added.

In addition to implementing the new UK proposals on orphan works licensing, the IPO's consultation also poses questions on how the UK government should implement new EU rules on orphan works.

"Orphan works can represent a loss to rights holders and to potential users: lost revenue for creators, lost cultural artefacts and lost commercial opportunities," Viscount Younger of Leckie, the UK's parliamentary under secretary of state for intellectual property, said. "We want to help both creators and users re-connect to these works. That is why both the UK Government and the EU have introduced new laws to allow the use of these orphan works in some circumstances. Not only will this create new cultural and commercial opportunities, but it should also help reunite copyright owners with their work – and with appropriate remuneration."

"Successful orphan works schemes will help reduce copyright infringement, help copyright owners make money and make more of the UK’s considerable cultural and creative capital," he added.