Select Committee on Innovation, Universities and Skills Second Report

5  Orphan works

67. An orphan work is a copyrighted work where it is difficult or impossible to contact the copyright holder because the author is not known or, where the author is known, who represents them. The Libraries and Archives Copyright Alliance gave an example:

A common example […] in libraries as well as archives […] is documentary photographs. The vast majority of documentary photographs have no identification of the author or the press agency or something of that sort; you simply have a photograph of a city street which lots of people want to print but there is no way of identifying the rightsholder.[132]

68. The British Academy explained that orphan works posed considerable difficulties for academic researchers in the humanities and social sciences, who were frequently unclear about the steps needed to comply with copyright requirements.[133] The problem is frustrating because the Academy believed that the majority of copyright works had little commercial value after a few years had elapsed from publication because the material was out of print, or sales were negligible or not significant. It found the situation "unsurprising, since if a copyright remains valuable the holder has a strong incentive to make him or herself known, while if the copyright has little value the holder has no real incentive even to respond to enquiries".[134]

69. The 2007 IPO Review recommended the Copyright Tribunal should be responsible for granting licences for the use of orphan works.[135] The Libraries and Archives Copyright Alliance expressed reservations:

Given the significance of the recommendation […] we would have preferred the Review's consideration of the complex issues surrounding orphan works to have gone into greater depth and detail. Furthermore, the Report's recommendation seems incompatible with the Gowers Review's findings, since the former appears to favour just a licensing solution, whereas the latter favoured the exceptions solution.[136]

An exceptions solution would allow the publication of a work if the author could not be ascertained by reasonable enquiry. The Libraries and Archives Copyright Alliance pointed out that this approach was "considerably more cost-effective than the use of the Tribunal and an exception solution is the only one appropriate to unpublished works".[137] In contrast, the licensing solution favoured by the 2007 IPO Review presented:

significant problems with regard to unpublished works. Firstly there is the issue of the duration of copyright in unpublished works in the UK (to 2039 at the earliest, no matter how old they are). Secondly because the issue of the large quantities of unpublished works. Thirdly the likelihood of a rights owner appearing is in most cases non-existent, so that the Tribunal would be building up a very substantial fund of fee income of benefit solely to the Exchequer.[138]

70. The Intellectual Property Office in its evidence to us accepted that that there was a "problem there to be addressed".[139] But Mr Fletcher from the Intellectual Property Office explained that if "we did anything nationally we would run the risk of it being overridden by later community law".[140] He said that the way forward was to work with EU. There was a lot of activity at the EU; there were working groups who were looking into how it might apply to different forms of copyright work. The Intellectual Property Office's "general feeling is that we should not jump on that until we know with a bit more clarity which way the EU process is going. My best guess perhaps is later this year, towards the end of the year, we might have some feeling on that and decide which way in the UK context we ought to move."[141] He added that the French Government, which would have the EU Presidency in the second half of 2008, wanted to concentrate on intellectual property which "may help to get the orphan works question further up the European agenda than might otherwise have been the case".[142]

71. The Gowers Review and the 2007 IPO Review do not agree on the treatment of orphan works. Academic institutions and researchers, for understandable and commendable reasons, do not want to run the risk of breaching copyright-protection. The Intellectual Property Office therefore needs to formulate a policy and to explain its approach to the negotiations on the issue taking place within the EU. We recommend that in its response to this Report the Intellectual Property Office set out its policy on the treatment of orphan works and that, in particular, it explain whether it supports licensing of or exemptions for orphan works. We further recommend that, to give certainty to those to whom orphan works have caused difficulties, the Intellectual Property Office consider an interim solution based on the exception approach, pending the outcome of the EU's deliberations.

132   Q 33 Back

133   Ev 26, para 3 Back

134   Ev 26, para 4 Back

135   2007 IPO Review, para 12.8 Back

136   Ev 18, para 5.1 Back

137   Ev 19, para 5.3(ii) Back

138   Ev 19, para 5.3(i) Back

139   Q 72 [Mr Quilty] Back

140   Q 75 [Mr Fletcher] Back

141   Q 74 Back

142   Q 75  Back

previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2008
Prepared 20 March 2008