Changes to UK copyright law allow licensing of ‘orphan’ artworks

    The UK Government has introduced a new scheme to enable the licensing of ‘orphan’ works – creative works which are still in copyright, but where the copyright owner is unknown or cannot be located. DACS continues to consult with the Government to ensure artists and estates are protected.

    How does the scheme work?

    The new licensing scheme, which came into force on 29 October 2014, was introduced through the Enterprise and Regulatory Reform (ERR) Act passed in 2013. The Government estimates it will widen access to at least 91 million culturally valuable creative works, including paintings, photographs, oral history recordings and diaries. 
     
    Anyone wishing to use an orphan work, on a website or in a book for example, must apply to the Government’s Intellectual Property Office (IPO) for a licence - unless the reproduction is covered by a copyright exception, including the new exception under EU law allowing museums, libraries, archives or educational establishments to digitise orphan artworks embedded in other items, for example, films or books, for non-commercial use only.
     
    If not covered by an exception, the person applying for a licence to use an orphan work must show they have made considerable attempts to identify and locate the copyright owner, referred to as a ‘diligent search’. Only after a search has been carried out can the work be considered an orphan.
     
    The IPO has produced guidance notes on how to go about conducting a diligent search and encourages anyone seeking to license an artwork, which they believe to be an orphan work, to contact DACS as well as use online software such as Picscout. If, after a licence has been granted, a copyright owner is found or comes forward, they will be remunerated.
     
    The IPO is keeping a register of works which have been subject to an application, including those where a licence has been refused as well those where a licence was granted. DACS will also monitor any related enquiries we receive.
     

    How will DACS ensure visual artists and artist estates are protected?

    DACS consulted with the Government on both the ERR Act and the orphan works licensing scheme.

    We made it clear that:

    • The pricing structure of the scheme should not undermine existing licensing schemes for artworks
    • There should be no differential treatment between orphan works and non-orphan works 
    • A diligent search must be carried out for an artwork to be identified as an orphan
    • The orphan works scheme should prevent the creation of orphan works in the future


    Read our response to the consultation on the orphan works licensing scheme (PDF).

    Together with the British Copyright Council, we will be monitoring the IPO's diligent search process to ensure our proposed requirements are being met.

    We continue to make explicit to the Government that the licensing of orphan works should not harm existing licences and artistic practices, and that the scheme does not encourage infringements of copyright.
     
     

    Image: Study in Space and Signage III, 2001 © Richard Galpin. All Rights Reserved, DACS 2014. Photography by Richard Galpin.

    Posted on 03/11/2014 by Jessica Bancroft