The Bill currently going through Parliament looks at modernising and improving legislation around a number of key areas to help businesses in how they operate, whether this is dealing with red tape or employment law. Copyright reform is a much needed feature of the Bill.
You can read an overview of the changes to copyright in the Bill here.
A recent addition to the Bill on copyright introduced a scheme that would allow the licensing of genuine ‘orphan works’. It would also create the power to authorise ‘voluntary extended collective licensing’; this a form of licensing that allows a collecting society (that meets certain criteria) to license all works in its sector, except those that have been opted out by the rights holders.
This announcement generated comment in the media and online, such as this article in The Register that unfortunately had a number of inaccuracies about how both schemes would operate. In the next series of blogs for the Bill we thought this would be a good opportunity to clarify the proposals and address any of these misunderstandings.
Today we’ll look at orphan works reform, what the scheme entails and the benefits that come with it. Tomorrow we’ll go into the details around the proposals and the misperceptions on what has been proposed – and the final blog will look at the Extended Collective Licensing (ECL) programme.
First of all, what is an Orphan Work?
An orphan work is a work protected by copyright, for example a photograph or piece of folk music where the rights holder is not known or can’t be found. There are many interesting orphan works, particularly in cultural institutions that at present cannot be displayed to the public or reproduced because the copyright owner cannot be found to ask their permission. For example, the Imperial War Museum has an estimated 2.2 million photographs where the rights holder has not been traced. This is a restriction on both cultural and economic growth. For example writers and publishers cannot use certain unique photographs to illustrate books on major world events. Similarly television producers cannot use unique archive film in documentaries. As well as enhancing cultural knowledge, the sale of such books, films and television programmes can contribute to economic growth.
The Bill is proposing the creation of a licensing organisation to allow use of orphan works for commercial and non-commercial purposes. But the proposals contain a number of key safeguards to protect the rights of the copyright owner, including the need for an extensive search for the rights holder, verified by an independent licensing body.
It is also proposed that compensation appropriate to the type of work and type of use is set aside if they do reappear. In addition, when the name of the rights holder is known (but they cannot be located) they must be credited whenever the work is used. If the name is not known there will need to be a notice, explaining how rights holders can contact the
authorising body to regain control of their work and to claim the remuneration set aside for them. It will also be assumed that the author has asserted their moral rights; that is to say that their moral rights must be respected and have not been waived. This means the rights holder has a right of attribution and right to object to derogatory treatment.
The article in “The Register” has a number of inaccuracies about what this change to the use of orphan works will mean in practice – we’ll address these points in full in our next post.
If you have any thoughts, or would like to ask any questions, please post a comment and we’ll try and answer as many as possible.