Orphan Works Update

Posted on: February 1, 2016 by

What do you do if you want to reproduce an artwork but have no idea who holds the rights in it? What options are available to the museum keen to create a new online resource of paintings, but with no record of who owns the copyright?

Back in November 2014 we reported on two new initiatives designed to help. The European Orphan Works scheme (in force from 29 October 2014) allows museums to digitise and make available large numbers of works for which copyright owners cannot be identified or located (so-called ‘orphan’ works). This was complemented in the UK by a new online system to license a broad range of orphan works (including standalone artistic works which were not included in the EU scheme). The object of the UK legislation was to “license the use of such works while protecting the rights of absent owners” (according to the Government’s Impact Assessment prior to the change). At the end November 2015, one year on, the UK Intellectual Property Office (IPO) issued a report on how the initiative has been going.

So, has the new scheme got the balance right?

Almost 300 works had passed through the UK system during its first year and licences granted to facilitate a wide range of projects, enabling, for example: old novels to be republished as ebooks, a poem for the centenary of the Battle of Gallipoli to be used again and orphan works to feature on TV programmes. Of the 294 works examined (the subject of 48 licence requests), the overwhelming majority were for still images (229, or 79%).The ‘diligent search’ for rights holders (an essential precursor to the grant of a licence) resulted in a number of copyright owners being located – a happy result for all parties.

Given the Government’s estimate that the new scheme would free up over 91 million works, the numbers for year one seem a little on the low side. Awareness and understanding within the sector undoubtedly played a part, and it is perhaps telling that almost a third of those surveyed by the IPO (albeit a small sample) were unaware of their entitlement to use the EU Directive. One of the aspects potential applicants may find daunting (and available feedback suggests this is the case) is the prospect of the obligatory ‘diligent search’ for rights holders. Sources they might need to consult include publishers, artists’ associations, industry bodies, collecting societies, library indexes and museum catalogues on top of extensive online investigations.

A challenge indeed! But one which has been met with some success by those who have so far grasped the nettle. The IPO cites an interesting case study from Leeds Museums and Galleries, which successfully used the scheme to incorporate works of Charles Ginner into an online collections database. On a different scale, in its gargantuan task to digitise its archive of the landmark feminist magazine Spare Rib, the British Library, as a publically accessible library, was able to make use of the EU Directive to make available contributions by rights holders it had been unable to identify or locate despite having completed a diligent search.

The success stories are heartening, and it seems that, with patience and ‘diligence’, growing numbers of art works, records and heritage assets will be made available to the public. The extent to which smaller organisations, without the resources of institutions such as the British Library, will be able to benefit from the scheme remains to be seen, but it is hoped that as awareness increases, understanding of the sector and the regulators improves and processes are streamlined, increasing numbers of art works formerly only accessible to the very few will be available to be enjoyed by us all.

The Orphan Works directive is just one of many recent EU initiatives designed to harmonise intellectual property laws across Europe. The IAL Diploma Course in Art Profession Law and Ethics, starting in just under a week’s time, will explore latest developments in art law, drawing out key implications for the legal sector and the art market. See our website for further details: http://www.ial.uk.com/DipAPLE.php

If you’re keen to learn more about the orphan works scheme and how you could potentially benefit, you might be interested in getting hold of a copy of Daniela Simone’s article, ‘Unlocking Orphan Works: A New Licensing Scheme’, in Art, Antiquity and Law, available for purchase at: http://www.ial.uk.com/19-4orphan.php