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Developing an evidence base on orphan works

Posted by: , Posted on: - Categories: Copyright, IP research

How can you use a copyright work when the rights-holder cannot be found? This is the issue with so called orphan works. Orphan works are works covered by copyright, but where a rights-holder is either not known or cannot be found. This means permission to use the orphan work (which could be anything from a photo or a poem to an audiovisual work) cannot be obtained - so the work cannot be reproduced lawfully, for example for use in an exhibition, book or television documentary. It can seem like a no-win situation for both the absent rights owner and the potential licensee.

The Hargreaves Review of Intellectual Property and Growth identified orphan works as the ‘starkest failure of the copyright framework to adapt’. In response to the review, the government announced it would legislate to enable orphan works usage.

As we’ve noted previously in IPO Facto blog posts, good policy begins with good evidence. So the Intellectual Property Office (IPO) began its work by developing an orphan works evidence base. It commissioned two independent research reports published on 2nd July 2013:

  1. Copyright and the Regulation of Orphan Works – A Comparative Review of Seven Jurisdictions and a Rights Clearance Simulation (Bournemouth University)
  2. Orphan Works in the UK and Overseas (PACEC).

Copyright and the Regulation of Orphan Works provides a Legal Review (examining how the US, Hungary, Denmark, the EU, Canada, India and Japan have dealt with, or are planning to deal with, the orphan works problem) and a Rights Clearance Simulation (intended to generate new data about the costs of using orphan works, by asking representatives of the seven jurisdictions what licence fees they would set in six potentially real-world scenarios).

The main findings of the research were as follows.

A central licensing authority is the most common solution

Using a central licensing authority is the most popular approach to dealing with orphan works – taken by Canada, India and Japan. Extended collective licensing is an approach taken by Denmark. The US has proposed various methods of dealing with orphan works, but does not have any orphan works legislation in force.

Support for introduction of an orphan works system

The PACEC report found most UK and foreign organisations supported the introduction of an orphan works system. There were only a small number of UK organisations that did not support a scheme of a relatively small sample size of 47 organisations (26 domestic organisations and 21 foreign organisations).

Lack of a standard price for licensing orphan works

Tariffs varied widely, with the only consistent finding being commercial licence fees tend to exceed non-commercial ones – as one would probably expect. Prices are set by central authorities in countries that have a central licensing system, on a case-by-case basis, and by collecting societies in Denmark.

Benefits and costs of an orphan works system

The UK organisations interviewed in the PACEC report stated the main benefits were an increase in supply of material that could be used and reductions in risk. The main costs identified were that the system could be too complex and cumbersome and the process to identify orphan works and issue licences could take too long. The research also suggests that if an orphan works system is too complex and costly, it will not be used.

Further information on the government’s plans for an orphan works licensing scheme (and also on voluntary extended licensing) in our factsheet.

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