Do you want to use a video clip on your website, but don’t know whose permission to ask? Include a piece of music by an unknown composer in your next concert? Or even re-publish a series of out-of-print detective novels? There’s a way to ensure that you can legally do any of these things, and more, in the UK – an orphan works licence.
Copyright works are orphans if the owner of the rights cannot be identified. If you don’t know who to ask for permission to use an image or other copyright work, it used to be that you simply could not use it, at least without taking a substantial risk that the copyright owner would appear and demand payment. Now, provided you comply with a few formalities and pay the appropriate fees, you can obtain the legal right to use these orphan works.
In this article, our copyright lawyers explain how you can apply for an orphan licence, how much they typically cost and any restrictions you need to be aware of.
Contents:
- Why do you need to use this work?
- Can an orphan works licence be used for both commercial and non-commercial purposes?
- Is an orphan works licence exclusive?
- How do I apply for an orphan licence?
- How much does it cost to apply for an orphan licence?
- How will I know if my orphan licence application is successful?
- What happens if my orphan licence application is refused?
- Are there any restrictions I need to be aware of?
- Summary
Why do you need to use this work?
If you want to use a photograph or other copyright work, you might be able to prove that it is no longer protected by copyright. If you know who created it, you can work out when the copyright expired (usually 70 years from the end of the year of the creator’s death). If you can’t identify the creator, the law will presume that copyright has expired if the work is over 70 years old, which you might be able to do with clues provided in a photograph for example.
If you can’t take advantage of that rule, you may still be able to assume that the owner can’t be identified or located and the work is an orphan, but not until you have carried out what the legislation calls a diligent search. How diligent it has to be depends on many factors, but one thing can be stated with certainty: you’ll have to consult a register of orphan works maintained by the Intellectual Property Office (IPO). There is no registration to bring copyright into existence – it is a basic principle of copyright law that it is formality-free and automatic – but when it comes to orphan works, maintaining a register is an important part of bringing them back into circulation.
Can an orphan works licence be used for both commercial and non-commercial purposes?
Orphan works licences are not limited to non-commercial purposes, as Creative Commons and other free or low-cost licences often are. You’ll have to tell the IPO when you apply what you want to do with the orphan work – and if later you wish to extend the scope of the licence to cover other activities, you’ll have to apply for a new licence.
If you won’t be making money from using the work, you pay 10 pence plus VAT for each licensed item. For commercial users, the rate will reflect the number of works covered by the licence and the type of use you will make of them. Rates will reflect what would be charged for non-orphan works.
Is an orphan works licence exclusive?
One drawback of an orphan works licence is that anyone else can get one, too. If you are happy with non-exclusive rights, be aware that you are only going to get a licence for a maximum of seven years. That gives you a reasonable period of certainty, while allowing for the fact that the author might be identified in the future. The seven-year licence can be renewed if the work is still an orphan.
How do I apply for an orphan licence?
The most important part of the application process is the diligent search. This is essential for demonstrating that the work is an orphan, but it might reveal that the status of the work has already been established and it is on the register maintained by the IPO meaning that you only have to pay the appropriate licence fee.
The register records what works have been the subject of a diligent search, where the rights-holders (or some of them) have not been identified or (if they have been identified) cannot be located. Once a work’s orphan status has been identified, you can take advantage of a licensing scheme to formalise your right to use that work – on payment of an application fee, followed by a licence fee from which the rights owner will be paid if they become known.
So what is involved in a diligent search? First of all, you need to search the register maintained by the Intellectual Property Office and the EU Intellectual Property Office. These searches will tell you whether the work in which you are interested in has already been licensed as an orphan work, and if it has (and it was not seven years or more ago) you can piggyback on the first licensee’s diligent search.
If this does not reveal that the work you are interested in is an orphan, you have to consult the sources listed in the copyright legislation. This can be quite demanding. In the case of visual works, you will have to look at relevant books, newspapers and periodicals, journals and magazines, and the databases of relevant collecting societies (such as DACS) and of picture agencies. The legislation also directs would-be applicants to sources they must consult for information about other categories of works.
In the application form, you will have to give details of the search to the IPO. Making a false or inaccurate statement could mean that you commit an infringement, so it is extremely important to get the application absolutely right. Failing to get the application right first time may lead to it being refused, delaying the issue of a licence and costing you time and money. Assembling the evidence that you have carried out a diligent search, and that your search meets the stringent requirements of the legislation, often requires the assistance of an experienced copyright lawyer.
The application form also has to give information enabling the work to be identified, perhaps by reference to its title or a description if it has no title. If you propose to adapt or modify the work, you need to tell the IPO about this – and if they consider it will amount to derogatory treatment of the work, they may refuse to grant the licence.
A single application can cover multiple works, up to 30.
How much does it cost to apply for an orphan licence?
The application fee is modest: £20 for one work, £24 for two, then going up in increments of £2 to £80 for 30 works. As this is to cover the IPO’s costs in processing the application, it is not refundable.
You can usually calculate the licence fee on the IPO website, and it will vary according to the type of work and the use you wish to make of it. For example, it quotes £175 for a licence to publish an electronic version of a novel, with a selling price of £5 and making 100.
How will I know if my orphan licence application is successful?
The IPO will let you know within 10 days whether your application has been successful, or that they need longer than that to consider it. The decision will be sent by email, and if the application has been rejected in whole or in part the reasons for the rejection will be given.
What happens if my orphan licence application is refused?
The application could be refused on various grounds. The most likely reason would be that the diligent search was not considered sufficient, but if the proposed use were considered to amount to derogatory treatment or the grant of a licence would not be in the public interest those would also be grounds for refusal, and there may be others too – there is no exhaustive list.
You could submit a fresh application, but it would have to be modified to overcome the IPO’s objections. Alternatively, you can appeal simply by sending your objection to the IPO. If they stand by their decision, you can then appeal to a manager at the IPO who has not previously been involved with your application. An appeal against a refusal, a condition attached to the licence, or the fee, can also be made to the Copyright Tribunal.
Are there any restrictions I need to be aware of?
An orphan licence is valid only in the UK. If you plan to use the work online, or perhaps to publish it in other jurisdictions, you must give careful consideration to whether you have the necessary permission, and take appropriate legal advice.
You also need to remember that the orphan work that you now have permission to use might well involve other people’s intellectual property. For example, a piece of music might be an orphan but a sound recording of it might have a known copyright owner (a record company, probably). And the performers will probably have their own rights. All these different rights may be orphans, in which case orphan licences could give you everything you need, but there might be a complex mosaic of licences (orphan and non-orphan) and permissions to put together, which is likely to require expert legal advice.
Summary
The orphan works system offers a valuable possibility to use copyright material where you cannot find the copyright owner to get permission in the normal way. It is worth bearing in mind as a potentially cheap source of content for a website or hard-copy publication, if you know that what you need is out there but without an owner whom you can approach for permission to use it.
