Orphan works

The term ‘orphan works’ is used to describe works protected by copyright in circumstances where the copyright holder cannot be traced - even after a diligent good faith search has been carried out - and hence the copyright work cannot be used without infringing copyright. Any use of a work that is considered to be ‘orphan’ runs the risk that a copyright owner may come forward at a later date, and take legal action for unauthorised use of their work.

Copyright protected works can become orphaned if data on the author and/or other relevant right holder(s) (such as publishers or film producers) is missing or outdated. This problem is made worse when works are no longer exploited commercially.

If you are thinking of using a copyright work and either don’t know or can’t find the owner, you should take legal advice. You may reduce the risks of being subjected to large claims if you have carried out an extensive search in good faith - and have documentary evidence of that search - but you could still be subject to legal action if the copyright owner comes forward.

Work to identify the kind of actions needed to constitute a good faith search has been undertaken in Europe under the i2010 European Digital Libraries initiative. The European Commission published due diligence guidelines on 4 June 2008.

However, you should note that these are only guidelines and do not have the force of law.

Changes to legislation that have been proposed in the final Digital Britain report would give government limited powers to authorise designated bodies to grant licences over orphaned works. This would allow the use of such works in the future, following a "diligent search" to find the rights holder, and with payment being held for those rights holders, should they subsequently come forwards.

The initial legislative changes (the enabling legislation) have been the subject of extensive discussions between the Intellectual Property Office and the British Copyright Council (BCC). A public letter to the BCC (115Kb) setting out the current situation, and announcing that this stage of the discussions will draw to a close in September 2009 is available.

Our discussions with the BCC and other interests have focussed on a legal analysis developed by the Intellectual Property Office. A copy of the orphan works paper (50Kb) is available. While the detail about how orphan works schemes will work in practice will be the subject of formal consultation before the secondary legislation embodying it is drafted (likely to be during 2010), we would of course welcome any comments from interested parties who have not yet commented on this first stage.