In order to use an existing copyright work, you need the permission of the rights-holder (unless it is covered by an exception under the Copyright Designs and Patents Act 1988 (CDPA)). Failure to obtain such permission is unlawful and leaves you vulnerable to legal action.
Obtaining such permission is simple enough when you know who the owner of the work is and can locate them, but what do you do if the owner of the work is unknown or cannot be found? These works are known as “orphan works”.
It used to be that, in such circumstances, you would, in the UK at least, find yourself in the invidious position of having to choose between (a) using the orphan work unlawfully (and risking litigation in the process), or (b) not using the orphan work at all. However, there is now a scheme that will allow you to use orphan works. It is called the Orphan Works Licensing Scheme and is administered by the Intellectual Property Office (IPO).
Under the Scheme, the IPO will, upon payment of an application fee and a licence fee, and subject to you undertaking a diligent search to try to find the missing rights holders, issue a non-exclusive, non-transferable licence that will allow you to use lawfully an orphan work for up to seven years.
- Application fees: These range between £20 and £80, depending on how many orphan works are covered in the application.
- Licence fees: These are based on fees charged for similar uses of comparable non-orphan works, an estimate of which is determined prior to the applicant completing the application. If granted, the IPO is obliged to retain the licence fee on behalf of the rights-holder for eight years from the date of the licence.
- Diligent search: The meaning of diligent search is the subject of guidance issued by the IPO, which guidance includes a template checklist that applicants should use to ensure they have carried out all of the relevant searches.
- Returning rights-holders: If you find that a work of yours has been licensed under the scheme then, subject to providing proof of ownership within eight years, the IPO will pay you the retained licence fees. Although any licences currently in existence will continue until their expiry, no new licences will be granted over the now non-orphaned work and the IPO register will be updated to reflect that the work is no longer categorised as an orphan work.
Note that the Scheme only applies in the UK – applicants must carry out searches and seek clearance for non-UK uses in each individual territory concerned. Further, the IPO will only grant licences for the use of the rights which are orphaned; any identifiable rights-holder who owns other rights in the same work will need to give their permission.
For rights-owners, it is now important to check the IPO register regularly to ensure that none of your works have been subject to licences granted under the Scheme.
The IPO materials and guidance notes for the Scheme are available here:
If you need assistance in utilising the scheme, either as a potential user or as a returning owner, please contact us.