Orphan Works In UK

Posted on 1/10/2014 by Jim Pickerell | Printable Version | Comments (0)

Last summer Selling Stock published stories here and here about efforts in the UK to revise the copyright rules and devise a path for those who want to use “orphan works” to do so legally. Orphan works are any copyrighted material where the copyright holder cannot be identified or located.

The Enterprise and Regulatory Reform Bill (ERR), which includes copyright clauses received royal assent on 25th of April 2013, and therefore the whole bill has become law (an Act of Parliament). However, how the law will change copyright is STILL to be detailed in secondary regulations that are in the process of being written by the UK Intellectual Property Office (IPO). Once the proposals are written they will also need to be approved by Parliament, which will happen at some point in 2014.

The bill has provided for an “authorized body appointed by the government” to “provide licenses for Orphan Works and Extended Collective Licensing.”

Among the things that are still unclear are:
  • The makeup of the authorized body,
  • How the authorized body will determine if a work is an orphan,
  • How the work of the authorized body will be funded,
  • How the fees for the license will be established, and
  • What rights a copyright holder will have if he later discovers use of his image.
It seems to be agreed that a “diligent search” must be done by the “authorized body” before a work is declared an orphan. The intended user will need to perform the diligent search. The authorized body will verify that a diligent search has taken place.

It has been suggested that use of the “Copyright Hub” would at least be part of a diligent search, but it is expected that there will be other requirements in order to properly qualify as “diligent.” No license will be issued unless all the diligent requirements are met. Without a license any use of the image would still be a copyright infringement.

The Copyright Hub was created as a place where users wishing to locate copyright holders and copyright information could find links to useful resources in one place. For example, it links to external sites which offer services such as a “Search By Image” feature that allows anyone to drag and drop an image they want to use into a search box. If the image is included in one or more databases that have links on the Hub, it will immediately return a list of places, and links to each site where that image can be licensed.

The possibility of a federated search of these external sites which would be enabled by the Hub is being investigated, but is still in the research stage and no decisions have yet been made on whether or not this will actually be developed for a future phase of the Hub.

Currently the PicScout ImageIRC database is the only one connected to the Hub. The PicScout database contains over 140 million images from more than 200 major image databases.

The Hub is in its second year of development. Industry sectors (Images, Music, Publishing, Newspaper etc.) have provided the initial funding, but cannot afford to fund it long term. At this time, the UK Government has said it will not fund the Hub and expects the Hub to be self-funding. A model for self-funding is still in development and has not yet been finalized. Interested parties indicate that the Copyright Hub must be developed to at least the next stage before it could even be in a position to be an effective part of a diligent search solution.

Diligent search rules and funding for further expansion of the Copyright Hub are issues that must be decided before there will be any orphan works licensing.

BAPLA is actively involved in consultations with the IPO to protect the interests of image rights holders. For more about what BAPLA is doing see this fact sheet.

Action Items

Follow this space for more information on the diligent search requirement as they develop.

If you’re a stock agency or library and your collection is not already indexed by the PicScout ImageExchange you may want to take steps to get your images indexed.

If you’re a photographer, represented by one or more agencies, and not sure if your images have been indexed you may want to do a few searches on the Hub to see if your images can be found. If not, then either contact the agency that represents your work and recommend that they get their collection indexed, or you can make arrangements directly with PicScout ImageExchange to have your work indexed, provided the images are in a searchable online database.

One way or another it won’t be long until customers have the ability to find you or someone who can license your images even if no metadata is connected to the image they want to license. It is time to think about how you can keep your images from being orphaned, and help customers license rights.

Copyright © 2014 Jim Pickerell. The above article may not be copied, reproduced, excerpted or distributed in any manner without written permission from the author. All requests should be submitted to Selling Stock at 10319 Westlake Drive, Suite 162, Bethesda, MD 20817, phone 301-461-7627, e-mail: wvz@fpcubgbf.pbz

Jim Pickerell is founder of www.selling-stock.com, an online newsletter that publishes daily. He is also available for personal telephone consultations on pricing and other matters related to stock photography. He occasionally acts as an expert witness on matters related to stock photography. For his current curriculum vitae go to: http://www.jimpickerell.com/Curriculum-Vitae.aspx.  


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