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only one appropriate to unpublished works".[137]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significant problems with regard to unpublished works.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
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