5 March 2021

Orphan Works and Brexit 2021 Update

By Naomi Korn, Managing Director

The Problem

Orphan works are works in copyright where the rights holders are either unknown or cannot be traced. Across UK heritage institutions, there are probably hundreds of millions of orphan works, sometimes representing up to 40-50% of collection items[1]. These include photographs, letters, prints, films, sound recordings, plays, broadcasts, drawings and other collection items, which were often never intended by their authors for commercial exploitation. They include interpretations and reflections of events notable in peoples’ lives and therefore represent an irreplaceable treasure chest of material culture and unheard voices.

In the UK, the duration of copyright in certain unpublished works runs until the end of the year 2039, regardless of how old the work is. Normally, copyright in text based works lasts for the author’s life time plus a further 70 years. This extra long duration of copyright, until 2039, presents severe resource implications for the UK’s cultural heritage sector at a time when it is under an unimaginable funding crisis following the Covid-19 pandemic. In addition, the likelihood of rights research and possible licence fees associated with these works results in an inexcusable double whammy effect of extra costs when resources are so stretched. Indeed, many of these items are likely to be orphan works.

Due to their nature, the requirements of copyright law and the lack of fit for purpose solutions, orphan works represent a massive issue for the mass digitisation and publication (including online) of assets owned by UK cultural heritage institutions. The lack of access to orphan works has therefore created a black hole of cultural heritage.

The Solutions

For many years, risk management has provided the only possible option for cultural heritage institutions to make their orphan works available online. However, in 2012 the Orphan Works Directive (implemented in the UK in October 2014) was an important development in attempting to provide a solution to help to open up online access to orphan works held by heritage institutions across the EU and facilitate mass digitisation of the treasures in their collections. Requiring reasonable searches to establish if rights holders could be located and if not, heritage institutions can register details of their orphan works on an EUIPO Orphan Works database. Once this is done, orphan works can be published online with little risk. Disappointingly, the EU Orphan Works Directive has not been used as widely used as hoped due to many issues, including the cumbersome nature of its interface, difficulties in mass uploading content and the resource/capacity issues that have resulted.

Notably until the UK left the EU in on 1^st January 2021, UK heritage institutions had used the Orphan Works Directive to publish some of their orphan works online, this included 14 UK heritage institutions such as the BFI, the National Library of Scotland and the British Library. When the UK left the EU and the cross-border copyright arrangements unique to EU member states stopped, UK heritage institutions who had already used the Orphan Works Exception were no longer able to use it as a basis for their online reproduction of orphan works and could no longer consider it’s use for any future online publication of their orphan works. Consequently, for UK institutions not using the Orphan Works Directive, risk management becomes an even more important consideration in opening up access to their orphan works.

Another option for the UK heritage organisations is the Orphan Works Licensing Scheme which provides a 7 year, UK only licence for the use of all types of orphan works for any commercial or non-commercial purpose. Usage of the licence by museums has been to date extremely low due to the high admin costs of the scheme, its limited coverage (it only covers the UK so anything published online would not be covered), and the relative lack of benefit in relation to costs and proportionate risks. The cost/risk/benefit of this solution does not necessarily balance out and so this solution is probably viable in only a minority of situations.

More about orphan works and the Orphan Works Licence can be found by clicking here.

The Future

Looking ahead, the EU Copyright Directive includes important provisions and exceptions for cultural heritage institutions, libraries and archives such as important provisions, which enable the online reproduction of out-of-commerce works, including orphan works. Countries across the EU, excluding the UK will implement the Copyright Directive in 2021. It remains to be seen how far the out-of-commerce provisions in the EU Copyright Directive will positively impact mass digitisation and facilitate bringing in millions of orphan works from the cold. Until such time as a decent solution for orphan works is found, heritage institutions, including those in the UK, who are considering their online publication of orphan works, will need to seriously take into account the role of risk management in reducing the black hole of digital cultural heritage.

[1] https://naomikorn.com/wp-content/uploads/2020/09/SCA_CollTrust_Orphan_Works_v1-final.pdf (accessed 2.03.2021)

Disclaimer: The material in this blog post is for general information only and is not legal advice. Always consult a qualified lawyer about a specific legal problem.