Orphan Works 2

On 29 October 2014 the Copyright and Rights in Performances (Licensing of Orphan Works) Regulations 2014 came into force to create a new UK scheme for licensing use of orphan works of all creative artists.

Orphan artworks are those where copyright owners are unknown and unable to be found after diligent search by would-be reproducers and/or merchandisers. Authors in all creative fields have been worried that these Regulations would significantly erode their copyright protection by making it easier for rip-off merchants to claim ignorance of a copyright owner’s identity, and carry on regardless. How do the new Regulations operate, and are artists’ concerns justified?

In this post-digital era most of us are aware that creative works in all forms are protected by intellectual property laws, copyright in particular automatically giving authors exclusive legal rights to control use of their original works via digital and mechanical reproduction and publishing and merchandising; and that such rights operate for up to 70 years after death. Because digital media now renders works more readily accessible and communicated than ever before, the number of would-be users of other people’s copyright works has substantially increased in recent times. Governments have recognised that digital technology is now widely used worldwide, and that longstanding copyright laws – enacted mainly during pre-digital centuries – should be relaxed to facilitate wider access to and fair use of orphan copyright works.

The UK’s orphan copyright works new licensing scheme has been carefully constructed to enable would-be legitimate merchandisers to use creative artists’ copyright works even when they are unable to identify and contact the copyright owner for permission. Essentially, the orphan copyright works licensing scheme requires would-be users to demonstrate that they have conducted diligent search of relevant sources to identify and locate the copyright owner, without success, in order to qualify for grant of an orphan copyright works users’ licence. The scheme is fashioned to encourage and help would-be users to conduct a diligent search to find the copyright owner who controls appropriate rights (and, if the owner is found, no orphan works licence would be required). In other words, although diligent search for copyright owners has always been required by copyright law, this new orphan copyright works licensing scheme enables a failed searcher to apply to an authorising body for permission/licence to use.  The UK Intellectual Property Office (UKIPO) operates the scheme by checking that diligent searches have been conducted and have failed to locate the copyright owner, in which case it may grant a permission/licence to use (for up to 7 years).

Certain Permitted Uses

Before conducting a diligent search for copyright owners, would-be users of a copyright work should first consider whether their intended use is automatically permitted by law, in which case a user licence would not be required. Such permitted uses have been expanded in recent times, to take account of post-digital era uses commonly practised worldwide, and include the following.
Cultural and heritage organisations often hold orphan copyright works within their collections, and such works are allowed to be digitised and placed on their websites for non-commercial use. Orphan copyright works allowed to be used in this way include literature, audiovisual and sound recordings, and visual art that is embedded in other works (such as in books or films); but ‘standalone’ still visual artworks held in such collections may not be used in this permitted way. Organisations allowed to act in this way include publicly accessible libraries, educational establishments, museums and archives, film and audio heritage institutions, and public service broadcasting organisations. ‘Publicly accessible’ means that the collections held by such organisations ‘can be viewed by the public if they visit the premises whether by appointment or not’.

Consideration should also be given to certain uses permitted by law, even when the copyright owner’s identity is known to a would-be user. Such permitted uses have also been expanded by law in recent times, and include the following. Personal copying from one medium or device to another for private and non-commercial use is now allowed (but we are still not allowed to give copies we make to other people). Copying for the purposes of research and preservation is now permitted, so long as the original author is credited/acknowledged and such use is non-commercial. Teaching and learning that uses digital copies of copyright material for the purposes of instruction is now permitted, so long as such use is non-commercial and credit/acknowledgement of original authors is made. Caricature, parody, pastiche, and quotation are now allowed for the purposes of creating new works that sample and/or remix elements of other artists’ works (not only digitally), so long as the use is non-commercial and credit/acknowledgement is given . Copying and publishing for the purposes of advertising a work for sale (say via eBay) is permitted.  Making 2D versions of 3D artworks (including buildings) permanently situated in publicly accessible places, is also permitted; as is making commercial use of such 2D versions (say, by photographing a public artwork, printing the image on T-shirts that are offered for sale).

Preliminary Search Considerations

Because copyright lasts during an artist’s lifetime and for decades after an artists’ death (up to 70 years for EU and US artists), provenance research may indicate that the work’s copyright will almost certainly have expired, even though the author remains as yet unidentified. In which case, as with certain uses automatically permitted by law, a user licence would not be required.

UKIPO publishes would-be user friendly information to help determine if a work is currently protected by copyright, which recommends triangular consideration of three key matters: when the work was first created/published; the estimated age of the work; whether the copyright/author is still alive and, if not, when they died. The length of copyright for still visual artworks is determined by the life of the artist, but only if the artist’s identity is known; if unknown, there are special rules for determining the length of copyright (some of which depend on whether the work has been published). UKIPO publishes a list of these special rules, and offers illustrative examples via straightforward flow charts; these include:
– artist’s identity is known and died before 1 January 1969, but the work remains unpublished: copyright expires on 31 December 2039;
– artist’s identity is unknown: copyright expires 70 years after the creation of the work or after the work was published (if published within 70 years of creation);
– artist’s identity is unknown, and the work was published before 1 January 1969: copyright expires on 31 December 2039
– artist’s identity is unknown, but the work remains unpublished: copyright expires on 31 December 2039.

Works made before 1912 by known artists may be subject to a ‘revived copyright’ if, for example, the creator died after 31 December 1924 and was a citizen of a European Economic Area country (EU plus Norway, Iceland, and Liechtenstein).

Diligent Searching

UKIPO does not impose a fixed procedure for diligent searching, and has no minimum information requirements. Each would-be user application is considered on its merits, and will therefore depend on the nature of the work and the information available about its provenance. Would-be user friendly guidance is published by UKIPO including a checklist of actions to be undertaken, and the submission of evidence gathered in support of an application for an orphan work user licence. Submission of a documented audit trail of diligent research is required, and these records together with other supporting evidence (such as email correspondence or contemporaneous notes of conversations). Such supporting evidence should be kept by a successful applicant for a minimum of eight years. The UK’s orphan works licensing scheme is not available where research reveals a copyright owner’s apparent or likely or actual identity, but who fails or refuses to respond to a would-be user licensing request: such a failure or refusal is a copyright owner’s legal right.
Researchers should also first consider consulting two newly established orphan works registers, to check whether a diligent search for the orphan work in question has already been conducted: the EU Orphan Works Database (http://oami.europa.eu/orphanworks); and the UK Orphan Works Register (http://www.orphanworkslicensing.service.gov.uk/view-register). If the orphan work is not registered in either of these databases, UKIPO offers detailed research guidance. Useful information about or leading to the artist’s identity may be discovered, for example: within or on the work itself by way of signatures or credits or other information; when and where the work has been exhibited or published, and by whom. If an image of the work has been digitally photographed and accessed, an online verification tool might be used to reveal metadata such as the date and time and location of the digitising (for example ‘Jeffrey Exif Viewer’ is such a tool that is available free online). The current or last known physical location of a work may lead to discovery of useful information, especially if the physical work is held by an institution or a digital copy/image of it is published by a website. The more contemporary the work, especially if the image of it is displayed on a website, the easier it should be to identify and locate the author/copyright owner.
Researchers should not underestimate the potential value of internet searching, but they should always view multiple pages of results, and use different search engines to verify/triangulate evidence gathered; and be aware that search results for visual works will normally prioritise the showing of hi-resolution images. UKIPO positively endorses researcher’s using Google, Bing, Wikipedia, and people search sites such as http://www.192.com or http://www.usidentify.com.

Clues for where to search for the author/copyright owner might be found from the context surrounding the image and/or its publication, for example if the image is a news picture, historic, fashion, art, or travel related. If so, specific websites might be fruitfully consulted, such as The British Association of Picture Libraries and Agencies (BAPLA) website that includes information on image suppliers by categories with links to the relevant websites.
UKIPO suggests contacting artists’ professional bodies to request contact information for their artist members, including: Association of Photographers (AOP); British Institute of Professional Photographers (BIPP); British Press Photographers Association (BPPA); National Union of Journalists (NUJ); Royal Academy of Art; Royal Scottish Academy of Art; Association of Illustrators (AOI); Royal British Society of Sculptors (RBSS); Design and Artists Copyright Society (DACS); and Artists’ Collecting Society (ACS). The BBC offers a free online database of artworks in public collections (https//www.bbc.co.uk/arts/yourpaintings). Creative Hub is a recently established central source of public information about copyright ownership with connections to a wide range of websites, digital copyright exchanges and databases in the UK and around the world, which facilitates licensing for consumers and businesses to purchase (https//www.copyrighthub.co.uk).

Diligent searching beyond the UK

If researches from UK-based sources suggest the copyright owner may be located outside the UK, further research needs to be undertaken in sources relevant to that country. UKIPO stresses that would-be users still need to demonstrate due diligence, by consulting sources equivalent to the ones that should be researched in the UK, especially artists’ collecting societies and professional membership bodies. Key international organisations that might hold relevant information are suggested, including: The Association of International Photography Art Dealers; International Association of Photographers; Publishers Global; national Intellectual Property Offices via a directory maintained by the World Intellectual Property Organisation (WIPO); and the Picture Archive Council of America.

Diligent search checklists

UKIPO also publishes diligent search checklists, freely available online for would-be users of four key creative art forms: still visual art; literature; film and sound. These checklists operate not only as a tabular research guide for would-be users, but also as an electronically completed document that must be submitted to support any application for an orphan work licence. Checklist questions offer users a straightforward and compact catechism of what would otherwise be a complex minefield of legal and practical issues for researchers to navigate. Typical questions aimed at helping to determine whether copyright currently exists include: is the author’s identify known; did the author die before 1 January 1969; was the work created before 1 January 1969; is the work a photograph created before 1 June 1957; was the work published before 1 August 1989; has the work ever been made available to the public; was the work first made available to the public before 1 January 1969;  is the work a literary, dramatic or musical work, a photograph or an engraving, created before 1 August 1989?

Fees

UKIPO’s published information and guidance for would-be users is comprehensive and transparent in all respects save two: the fee payable for making an orphan licence application and, if granted, cost of the licence fee. Application fees are not fixed, but are displayed by UKIPO only to applicants at the start of their online application process, because each application fee will be uniquely calculated according to the number of works and uses required; similarly, if licences are granted, licence fees are set on a ‘price on application’ basis. Application fees are payable when the application is submitted, and are non-refundable. Payments can only be made by credit or debit card.

Refusal of Licence

If UKIPO refuses to grant a would-be user applicant a licence, or offers to grant one on terms unacceptable to the applicant, an appeal may be made to the Copyright Tribunal: a court with judges who have special knowledge and experience of copyright law and practice, and which has discretionary powers to overturn UKIPO’s decision and replace it with a grant of the court’s own orphan work copyright licence.

Envoi

Having considered the establishment of the UK orphan works copyright licensing scheme, it remains to be seen whether it operates in ways that allay concerns of authors in all creative fields that it now creates an ‘open season’ environment for rip-off merchants. On the face of the UK Regulations, and especially given the extensive and comprehensive user-friendly online service now established by UKIPO (see: http://www.gov.uk/apply-for-a-licence-to-use-an-orphan-work), would-be commercial users of copyright works are required to undertake – and to demonstrate they have undertaken – significant diligent research to resolve three key questions: is the work still protected by copyright; if so, is the would-be use automatically permitted by copyright law; if not, is the identity of the author/artist/copyright owner unknown following thorough research from a variety of relevant sources. It also remains to be seen whether would-be rip-off merchants mendaciously interpret or ignorantly regard this new orphan works copyright environment as a carte blanche to trash artists’ rights. Not so.

Finally, artists may themselves benefit from these post-digital era legal changes in favour of would-be users of others’ copyright works. Artists increasingly use digital technological tools to source digitised material for inclusion in their own original artworks; including use of not only other artists’ still visual artworks, but also other authors’ literary texts, film/video, and sound.  Such appropriated uses may now be automatically permitted by copyright law: if a new non-commercial artwork is created that credits/acknowledges the source authors, whose works are incorporated by way of caricature, parody, pastiche, or quotation.

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This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.