Post by Nevena Kostova
The issues surrounding the new orphan works licensing scheme and the provisions for extended collective licensing (ECL) have been the subject of heated discussions particularly since their coming into force on 25 April 2013. In fact, it is not often that the UK Intellectual Property Office deems necessary to publish factsheets intended to dispel ‘misunderstandings and inaccuracies’ in relation to the newly legislated measures.
In May this year, after a wave of uproar over the implications of the new intellectual property (IP) provisions in the Enterprise and Regulatory Reform Act (ERRA), with some writers describing the action as the abolishment of copyright, the IPO issued what it called a ‘myth and fact information document’. This document aimed to disclaim some of the common concerns of photographers in particular, who felt that the rights in their works would be jeopardised by the new law.
A closer look at the selection of refuted myths reveals a certain discrepancy between the actual issues and concerns of creators and those addressed by the IPO. The first myth, for instance, holds the notion that the new provisions remove the automatic right to copyright for owners of photos posted online. In fact, it is not the existence of copyright that photographers are concerned about. Just a few days before the ERRA received Royal Assent, English photographer David Bailey wrote a letter to George Osborne MP on behalf of all owners and creators of IP drawing attention to the widespread practice within social media of removing metadata, the source identifying information attached to digital works, thereby rendering such works “orphans”. With the new law, Bailey summarises, “commercial organisations will be allowed to make money from our “orphans”, but not us, the creators.”
As the campaign group stop43 explains, the term “orphan work” is inaccurate as it suggests that an artistic work has no author and has been “abandoned” although this is seldom the case. In essence, the term describes in-copyright works whose right-holders cannot be identified or contacted for permission to use the works at hand. In this respect, the new law has introduced a scheme for the granting of licenses for acts restricted by copyright which would otherwise require the consent of the missing owner. It is not surprising, therefore, that the March 2012 Copyright consultation response by DACS (the Design and Artists Copyright Society) revealed that 48% of their responding members entirely opposed a scheme to legitimise the use of orphan works, while a further 24.4% were undecided on the matter.
Today, the new section 116A of the Copyright, Designs and Patents Act 1988 authorises the Secretary of State to provide, by regulations, for the grant of licenses in respect of orphan works and to specify the person or body authorised to administer such licenses. While the provision itself does not define what orphan works are, it determines that for a work to qualify under the scheme, the owner of copyright in it must not have been found after a diligent search – the specifics of which are to be designed in the further statutory instruments.
A recent article by University of Cambridge Research Associate Eleonora Rosati probed the compatibility of the orphan works ERRA provisions with existing UK and EU laws. A substantial part of the article focussed on the differences in approach and scope between the ERRA provisions and the recently adopted EU Directive 2012/28 on certain permitted uses of orphan works, which the UK must implement by October 29, 2014.
The Directive only concerns uses made of orphan works by publicly accessible libraries, educational establishments and museums, as well as by archives and other cultural institutions bearing public-interest missions. What is more, it currently excludes stand-alone photographs and other images from its scope of application.
Significantly, the UK provisions do not limit the circle of beneficiaries, who may make use of such works, nor do they impose any restrictions on the types of works which fall under the scheme and the potential uses that orphan works may be put to. Controversially, unlike the EU Directive, the ERRA provides for the commercial use of orphan works, hence the relevance of metadata, its removal and the entailing concerns of creators.
Yet, to do justice to the UK legislator, while the standards of a diligent search are to be specified in implementing regulations, the IPO has clearly reassured that any diligent search will need to be verified by the independent authorising body before a work can be used. To this effect, the UK licensing of orphan works plans to include more safeguards than are currently provided for under the Directive.
Ultimately, however, as Rosati concludes in her article, an ERRA license will allow for a much broader spectrum of uses of orphan works, including for the creation of derivative works. Therefore, the recent UK orphan works legislation could render the future UK transposition of the narrower EU Directive redundant. In fact, it has been claimed that by legislating on copyright issues within the ERRA, instead of a dedicated Copyright Bill, the UK legislator sought to pre-empt the EU framework because Article 8.2 of the Directive ensures that it will apply without prejudice to acts or rights acquired prior to its implementation.
The new orphan works provisions have certainly stirred the minds of many. While academics ponder on the legitimacy of the new UK scheme under EU law, creators, campaign and rights groups lament the new legislation in timid expectation of the concretising statutory instruments.