The UK’s approach to orphan works Cambridge Archives Group 30 January 2015

Contents Orphan works: EU Directive Orphan works: UK licensing scheme overview Orphan works: applying for a licence Copyright exceptions relevant to the cultural heritage sector Unpublished works Questions

Orphan Works Orphan works are creative works or performances - like a diary, photograph, film or piece of music - for which one or more of the right holders is either unknown or cannot be found. Because permission of right holder cannot be obtained, previously these works could only be used to a very limited extent Since 29 October 2014 measures in place to allow for the reproduction of orphan works

Legislation EU Directive on certain permitted uses of orphan works (Directive 2012/28/EU) implemented by SI 2014/2861 The Enterprise & Regulatory Reform Act 2013 gave the Secretary of State powers to introduce an orphan works licensing scheme by adding new sections 116A, 116C and 116D and paragraphs 1A, 1C and 1D of Schedule 2A to the Copyright, Designs & Patents Act 1988 – implemented by SI 2014/2863

Exception implementing EU Directive on certain permitted uses of orphan works Allows cultural and heritage organisations to digitise and place orphan works on their website for non-commercial use. This does not include the use of standalone artistic works such as a photograph. Eligibility can be checked using UK questionnaire, or you can go straight to Office for Harmonization in the Internal Market (OHIM) for information: phan-works-database phan-works-database

Exception implementing EU Directive on certain permitted uses of orphan works (cont) Diligent search required Registration with OHIM No upfront remuneration for right holder(s) but fair compensation to be paid if they reappear Appeals process to the Copyright Tribunal if agreement cannot be reached on the level of fair compensation Mutual recognition of orphan work status across EU Credit for creator/right holder required where name is known

Orphan works licensing scheme In addition to the exception under the Directive, the IPO is running the UK Orphan Works Licensing Scheme Anyone can obtain a licence to use orphan works in the UK Licences cover both commercial and non-commercial use Licences granted by the IPO Scheme went live at the end of October:

Online application Application is online only You can find out how much it will cost before deciding whether to apply Need to select work type and use and the licence fee and application fee will be generated

How much will it cost – licence & application fee Licence fees, as far as possible, reflect what fees are charged for equivalent use of similar non-orphan works Licence fees for non-commercial use will be minimal (£0.10); defined as per Creative Commons Licence fee held by IPO for right holder for 8 years Application fee solely to cover IPO costs Starts at £20 for one work, up to £80 for thirty works per application.

Before completing the application Diligent search for right holders must have been undertaken Guidance on diligent search and checklists published and available at search-guidance-for-applicants

What details need to be provided? Title of work Known creators/right holders Work description Use description Any known reference/identifiers (e.g. ISBN) Any information about the history/provenance of the work Details of your diligent search (upload checklist)

Submitting your application Submit application - including details of diligent search, copy of still image (and adaptation if applicable), pay application fee IPO checks and processes application Checks diligent search Checks derogatory treatment where proposed use involves an adaptation of the work Decision normally in 10 working days Key details of your application entered on publicly accessible electronic register

The licence If application successful IPO notifies applicant Payment of the licence fee, licence issued electronically If right holder emerges licence continues but no new licences issued All licences Require credit for creator/right holder where name is known Maximum 7 years Non-exclusive UK only

The register Searchable database with details of all applications, decisions and licences granted and refused Thumbnail image of the work if it is a still image such as a photograph register register

Unclaimed fees If right holders not found in diligent search most likely time to reappear is when actively licensed – therefore licence fee held for 8 years – i.e. length of maximum licence plus one year IPO has discretion to pay a reappearing right holder even after that time After 8 years: Re-imbursement of IPO’s set up/running costs Any surplus to be used in line with Collective Rights Management Directive for social, cultural & educational activities.

Appeals Appeal to Copyright Tribunal for applicants: Level of licence fee or licence condition Refusal to grant a licence Appeal to First Tier Tribunal for reappearing right holders re: IPO as authorising body acting improperly IPO as authorising body failing to comply with its obligations under the regulations

Copyright exceptions Changes were made to copyright exceptions for cultural heritage institutions on 1 June 2014 Existing exceptions for libraries/archives expanded to apply to all types of copyright work, not just literary, dramatic and musical works. The archiving and preservation exception extended to apply to museums and galleries as well as libraries and archives. Customers requiring copies of works for the purposes of non- commercial research or private study are now able to submit declarations to librarians/archivists electronically. New exception introduced allowing cultural institutions to make works available on their premises via dedicated terminals, provided: o the works have been legitimately acquired o there are no licensing or contractual terms to the contrary.

Unpublished works Government consulted on reducing copyright duration in certain unpublished works, and following submissions has decided not to proceed. We are keen to explore with stakeholders who support reducing the term whether there are legislative or other practical solutions to help to lift the burden on cultural institutions. Orphan works scheme can help to licence the work in the absence of the right holder.

The orphan works licensing scheme to date (end January 2015) 14 applications, 203 works 9 licences granted, 195 works Licences cover literary works, artistic works and musical works Applications from regions as well as London Commercial and non-commercial EU exception: currently 47 works registered by the British Library, 6 British institutions registered with the