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Copyright: Orphan Works

A useful source of information and advice on Copyright in HE

What is an Orphan Work?

“A work – such as a book, a piece of music, a painting or a film – in which copyright exists, but where the copyright owner is either unknown or cannot be located is referred to as an ‘orphan work’.”1

You cannot usually use a work if you don’t know who to ask permission from, this is unless you are able to use a copyright exception.2 So, the idea of labelling a work as an Orphan Work allows someone to get permission to use the work even though the creator cannot be found.

Changes in UK Law

Up until the end of 2020 there was an Orphan Works exception that certain institutions in the UK could use, but, due to Brexit, this exception is no longer part of UK law; institutions can now only licence these works3  in order to use them.

Under the previous exception organisations such as universities were allowed to make “…certain uses of orphan works without having to apply for a licence from the IPO [Intellectual Property Office]but the organisation still had to perform a diligent search.

So, due to this change, organisations in the UK could now be awarded fines due to copyright infringement for either any Orphan works made viewable for a UK or European Economic Area ('EEA') audience after 1st January 2021, or the Orphan Works already put up prior to 1st January 2021.5

How Can I use Orphan Works and How does a Work Become an Orphan Work?

Those wanting to use Orphan Works now have to apply for a licence in order to do so.

In order to apply for a licence for a work to be labelled as an Orphan work, a ‘diligent search’ has to be completed in order to discern that the copyright holder can’t be found; “This means that before any work can qualify as an orphan work you must carry out a thorough search for the copyright owner to be verified by the IPO…”6

But, it might be worth checking this website to see if the work you want to use is already on the orphan works register - https://www.orphanworkslicensing.service.gov.uk/view-register

The IPO also suggests to check the copyright of the because if the work isn’t actually still in copyright you don’t need an orphan works licence.7

When the search has been completed, the IPO will grant a ‘non-exclusive licence’ which allows the institution wanting to use the work to do so, ‘but only within the UK’; the licence works as if it has been given by the copyright holder, but only lasts for ‘up to 7 years’.8  This licence is renewable.9

 

Keep in mind that, in order to get a licence, there is “an application fee and a licence fee.”10

“The IPO stipulates that the application fee will be £20 for one work, scaling up per work to the maximum of £80 for 30 works."11

The application fee table can be found on https://www.gov.uk/guidance/copyright-orphan-works.

The licence fee amount will be subject to:

  1. the ‘type of work’, for example, ‘literary, artistic, musical’ etc.,
  2. what the amount usually is for comparably using a ‘non-orphan work’
  3. and ‘…whether the use is commercial or non-commercial'12

“…at present, the licence fee for non-commercial use has been set at a very low threshold: [it] has been set at 10 pence (£0.10) per work.”13

 

If you need to carry out a diligent search this website gives guidance on the process - https://www.gov.uk/government/publications/orphan-works-diligent-search-guidance-for-applicants/orphan-works-diligent-search-guidance

Mendis and Oruç also highlight that there is a diligent search website which runs through how to do a diligent search.14 - This can be found at https://diligentsearch.eu/ then click on the ‘search tool’ button.

 

References

Footnotes

1 - Mendis and Oruç 2021.

2 - Mendis and Oruç 2021.

3-  Mendis and Oruç 2021.

4-  Mendis and Oruç 2021.

5   Mendis and Oruç 2021.

6 - Mendis and Oruç 2021.

7 - Intellectual Property Office 2021.

8 - Mendis and Oruç 2021.

 9 - Intellectual Property Office 2021.

10 - Intellectual Property Office 2021.

11 - Mendis and Oruç 2021. (The bold text is our addition)

12 - Mendis and Oruç 2021. (The bold text is our addition)

13 - Mendis and Oruç 2021. (The bold text is our addition)

14 - Mendis and Oruç 2021.

Bibliography

Intellectual Property Office, ‘Copyright: orphan works’, https://www.gov.uk/guidance/copyright-orphan-works [accessed 16th June 2021] Open Government Licence v3.0

Mendis, D. and Oruç, P. “Orphan Works” https://www.copyrightuser.org/understand/exceptions/orphan-works/ [accessed 16th June 2021] CC BY 3.0 https://creativecommons.org/licenses/by/3.0/deed.en_US – with changes for conciseness

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