As of 29 October 2014 – last Wednesday – the new Orphan Works scheme was in force throughout the European Union. This was the system introduced by the Orphan Works Directive 2012/28, which allows a number of institutions, including museums, to make available large numbers of works for which copyright owners could not be identified or located.
If after a “diligent search” (a somewhat slippery term which has now been exhaustively set out in UK law through the new Schedule ZA1 to the Copyright, Designs and Patents Act 1988) the copyright holder cannot be located, then a museum would be able to make the work available to the public or reproduce it for the purposes of digitisation, making available, indexing, cataloguing, preservation or restoration.
While the new provisions apply to literary works (such as books, journals, and newspapers), cinematographic works, audiovisual works and sound recordings in museum collections, they do not apply to standalone artistic works. This means that a museum will not be able to make available images of orphan work paintings, drawings or photographs, the only exception being where those works are “embedded” or incorporated into another work, such as with an image or an illustration in a book.
Because of this last shortcoming, it is unclear to what extent the European scheme will benefit museums.
The UK, however, has gone further. On 29 October, a new UK scheme was launched to supplement the EU changes. This will make available for use a much broader range of orphan works (including standalone artistic works) to members of the public. A diligent search will again be required, and the user will have to obtain a licence through the UK Intellectual Property Office. It has been estimated by the government that this will free up use for over 91 million works.