30 June 2026
Orphan Works, Copyright, and Mass Digitisation: Lessons from the UK
By Naomi Korn, CEO
Orphan works, copyright-protected materials whose rights holders are unknown or cannot be traced, pose a major obstacle to the mass digitisation of cultural heritage. Although digitisation offers unprecedented opportunities for access, legal uncertainty often prevents institutions from making collections available online.
This article draws on the PhD research of Naomi Korn at the University of Edinburgh, analysing the impact of Brexit on the management of orphan works and UK Government copyright policy. It also builds on findings published in the Journal of Intellectual Property Rights (JIPR), examining how legislative frameworks shape access to cultural heritage (full article: https://or.niscpr.res.in/index.php/JIPR/article/view/28459/5834).
In the UK, two different regulatory approaches have addressed orphan works. The first was an EU-derived exception (2014), allowing cultural heritage institutions to digitise and share orphan works for non-commercial purposes following a diligent search. Its strength lay in cross-border recognition, enabling large-scale dissemination. Alongside this, the UK introduced a domestic Orphan Works Licensing Scheme (OWLS), permitting use of individual orphan works subject to fees and administrative requirements. However, this system operates on a case-by-case basis and is poorly suited to mass digitisation.
The digitisation of Spare Rib, a germinal second-wave feminist magazine, published between 1972 – 1993, illustrates the difference. Using the exception, the British Library made the archive accessible online. Following Brexit and the repeal of the exception, the archive was removed, highlighting how fragile access becomes without enabling legal frameworks. The UK now relies on the OWLS, yet such schemes are costly, time-intensive, and do not scale effectively to support mass digitisation of cultural heritage. The key lesson is clear: licensing alone cannot support mass digitisation. Effective policy must combine OWLS for domestic use with targeted exceptions supporting cultural heritage. Together, these can unlock vast portions of our shared cultural heritage, else they remain inaccessible in the black hole of digital culture.