The recently passed Enterprise and Regulatory Reform Act 2013 represents a new direction for copyright law in an attempt to keep up with emerging technologies and behaviours. Is this a necessary step, or have the owners of copyright had vital protection removed?
The Act paves the way for future reforms to copyright law to be made via new regulations, including measures to free-up the use and exploitation of 'orphan works'. Orphan works are copyrighted material, such as books, films, photographs and music, which have no identified owner. Currently, large volumes of orphan works are stored, unused, in libraries and other public and private institutions. People, companies or institutions that would want to utilise such works do not because copyright law prevents use or digitisation unless the copyright owner grants permission or until the term of copyright protection expires. The Government has used the Act as a means to make it easier for orphan works to be used.
The Government intends that anyone wishing to apply for an orphan works licence will first have to conduct a 'diligent search' for the owner. These searches would be verified as 'diligent' by independent authorising bodies. This concept has been challenged from a number of corners, with photographers being amongst the most vociferous. They are concerned that information that identifies them as rights holders would be deleted from digital files (such as meta-data), making their works orphan works.
In response to this criticism, the Government has subsequently made some clarifications, notably indicating that representatives from the photographic industry will be involved in defining what would constitute a 'diligent search' under the orphan works regulations.
The UK Intellectual Property Office has said that licensees of orphan works will have to pay a licence fee at market rate so that a rights holder could be remunerated for the use of the works if they are later identified; and that the holder of an orphan works licence will not be permitted to grant sub-licences. Beyond that, the details of how the scheme will operate are not yet clear, but hopefully will become so once the draft orphan works regulations are published. Consultation will be crucial in assuaging the concerns of rights-holders.