25 April 2023
Orphan Works Post Brexit – What Next?
By Naomi Korn, CEO
Orphan works – works that are in copyright but where the rights holders are unknown or cannot be traced – are a global, unsolved problem representing likely billions of items. I was one of the first to study the scale and scope of orphan works across UK cultural heritage organisations, analysed through the lens of services to the public. In my study, undertaken from a practitioner’s perspective, I estimated that in some contexts, between 20-50% of collection items may constitute orphan works. Orphan works are particularly problematic for libraries and cultural heritage organisations who are the custodians of much orphan works material and often want to make them available online. Challenges they face include the balancing of legal compliance versus organisational objectives. This often resulting in laborious and time resource efforts in trying to locate rights holders and ultimately represents a significant obstacle to the online publication of digital cultural heritage.
Whilst there are several international legislative solutions for orphan works, their suitability for UK libraries and cultural heritage organisations is questionable for a variety of reasons.
The EU Orphan Works Directive was transposed into the UK’s legislative framework in 2014. Whilst limited in scope, it has provided a helpful solution for the online publication of certain types of orphan works by mainly cultural heritage organisations and libraries. However, following the UK’s departure from the EU in 2020, the UK is no longer able to benefit from it. An immediate impact of the loss of the EU Orphan Works Directive from the UK’s legislative framework, was the removal of the digital archive of the second wave feminist publication, Spare Rib, by the British Library.
In October 2014, the UK Government also launched the Orphan Works Licensing Scheme (OWLS) while it transposed the EU Orphan Works Directive into the UK’s legislative framework as an exception. Following an application to the UK’s Intellectual Property Office (UK IPO) who administer the OWLS, the aim of the OWLS is to provide a non-exclusive UK-based licence for up to 7 years (with the option for renewal) for the commercial and non-commercial use of any type of orphan work. At the time of writing, the OWLS has been largely underused and critiqued as unaffordable with reference to the millions of items held by UK cultural heritage organisations.
Other legislative solutions available for orphan works, include the Out of Commerce provisions contained within Directive (EU) 2019/790, which was implemented across the EU in 2021. The aim of this Directive has been the establishment of a legal framework for the licensing of out-of-commerce works by a collective management organisation (CMO) that could demonstrate that is representative of rights holders in the appropriate type of work and/or subject matter. It has also created the mechanism for member states to provide an exception or limitation if no CMO is able to licence the works. The Out of Commerce Works solution is predicated upon access to the EUIPO Out of Commerce Works Portal which provides information about a work (which is either available under licence or an exception), six months before it before it is made available, including an option for rights holders to “opt-out”. Because the UK is no longer part of the EU, Directive (EU) 2019/790 is not currently possible for the UK and therefore the Out of Commerce provisions remain a pipe dream.
Extended Collective Licensing (ECL) operates on the basis that rights holders become a member of a licensing body who are then mandated by members to act on their behalf in their management of their copyright. Statutory ECL, legislated for in the UK, creates a framework for qualifying licensing bodies to operate a licensing scheme for both their members as well as non-members on an opt-out basis. Whilst it specifically benefits as a solution for mass digitisation, by virtue of its potential in covering complete repertoires of works, it would inevitably encompass orphan works too.
However, in 2013, two French authors argued that the collective management of their digital rights in out-of-print books, under French law, on an opt out basis, represented an undermining of their exclusive property rights. This case was discussed in the Court of Justice of the European Union in 2016. The resulting judgement, in favour of the litigants, required that authors opted into the scheme, therefore undermining the purpose and benefits of ECL. At the same time, it heightened the arguments for a specific exception to the exclusive rights of creators, to facilitate mass digitisation for cultural heritage organisations discussed below. In the UK, the impact of the judgement of the Soulier and Doke case, halted the progression of ECL as a legislative solution for mass digitisation and thus legal publication of orphan works.
There is no doubt that until suitable legally viable solutions for orphan works are implemented in the UK, cultural heritage institutions and libraries remain stuck between a rock and hard place in any decisions that they make regarding online publication of their orphan works.
Currently I am undertaking PhD research at the University of Edinburgh analysing the impact of Brexit on the management of orphan works by cultural heritage institutions.
Naomi Korn will be presenting some of her initial research at the CILIP Copyright Conference on the 16 May 2023. She will be discussing the viability of these various legislative solutions for orphan works in more detail.
Naomi Korn Associates offer a range of copyright services to help organisations remain legally compliant when using third party material as well as how best to protect and optimise your assets as set out in the Copyright, Designs and Patents Act 1988 and other related legislation. We also provide downloadable resources, operational tools and templates, jargon-free advice, practical training and mentoring to ensure organisations comply with their intellectual property needs. For more information contact email@example.com.
Naomi is running an online Copyright Essentials training course on 12 and 19 June 2023 – click here to book your place.
Previous thought pieces:
 Korn, N. (2009) ‘In from the Cold: An assessment of the scope of ‘Orphan Works’ and its impact on the delivery of services to the public’. Cambridge: Collection’s Trust. Available at: https://www.webarchive.org.uk/wayback/archive/20140615221324/http://www.jisc.ac.uk/media/documents/publications/infromthecoldv1.pdf (Accessed: 17 August 2021).
 Ibid., 34
 https://blogs.bl.uk/socialscience/2020/12/digitised-spare-rib-resource.html (Accessed 25 April 2023)
 Intellectual Property Office (2018) ‘Apply to license an orphan work’. Available at: https://www.gov.uk/guidance/copyright-orphan-works (Accessed: 20 September 2020).
 Intellectual Property Office (2018) ‘Apply to license an orphan work’. Available at: https://www.gov.uk/guidance/copyright-orphan-works (Accessed 20 September 2020).
 Martinez, M., and Terras, M., (2019) ‘Not Adopted’: The UK Orphan Works Licensing Scheme and How the Crisis of Copyright in the Cultural Heritage Sector Restricts Access to Digital Content. Open Library of Humanities, 5(1): 36, pp. 1–51. Available at DOI: https://doi.org/10.16995/olh.335 (Accessed: 30 September 2020).
 More about ECL operated by UK Government and the detailed framework associated with ECL is available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/544362/extended-collective-licensing-application-guidance.pdf (Accessed: 27 July 2022).
 Soulier and Doke (C-301/15, EU:C:2016:878)
 See Paul Keller’s summary and arguments: https://communia-association.org/2016/11/23/cjeu-ruling-doke-soulier-case-emphasizes-need-real-solution-commerce-problem/ (Accessed 10 September 2022)
 Soulier and Doke (C-301/15, EU:C:2016:878)