20 November 2014

*Creator Unknown: UK intellectual Property Office announce register for access to and licensing of over 90 million *Orphan Works

In what could be argued as slightly premature, the UK IPO recently issued a press release announcing it had opened up access to a register of 91 million Orphan Works covering still images, moving images, sound recordings, written work, scripts and choreography and music notation . It claims the register will enable millions of Creative and Cultural Works to be digitised and put up for license to anyone who wishes to use the work and avoid direct risk of copyright infringement. License fees paid will be retained in an IPO Orphan Works fund (we assume) to be passed to the copyright owner when found or if the owner is deceased to be claimed by their estate managers if the work remains within copyright. https://www.gov.uk/government/news/uk-opens-access-to-91-million-orphan-works

It’s a good idea in principle but currently, poorly implemented.

The register is in Beta mode and content and design is extremely scant. https://www.orphanworkslicensing.service.gov.uk/view-register

Currently the content information displayed attempts to keep things simple and it enables a viewer or the Creator themselves to contact the register and state their claim to an item of work using a simple form.

It presents as a register only listing items of work others have applied to license, rather than, as the press release claims, ‘enables access to a register of 91 million Orphan Works’.

Currently there is no front-end information on how to apply for a license; or any means to search the register beyond the current 42 items of works others have submitted a license application to use.  

We will assume this is all to come in the near future along with a pricing structure, a Works due-diligence search facility with an image recognition upload function, and so forth.

The press release says:

  • An EU Directive on certain permitted use of orphan works provides an exception to allow cultural institutions to digitise written, cinematic or audio-visual works and sound recordings and display them on their websites, for non-commercial use only. The EU Directive comes into UK law on 29 October 2014.
  • The UK Orphan Works scheme enables licensing of copyright works in the UK where the rights holder cannot be located. The licensing scheme applies to all types of orphan works and provides for broader commercial as well as non-commercial use. It can be used by anyone and is not just restricted to cultural and heritage bodies.

However, a review of the Due Diligence Guidance documents is not at all pleasing. Even those with a good understanding of copyright would struggle to invest the time in the myriad of due-diligence steps required preceeding a license application. General citizens and businesses seeking to do the right thing would likely throw the towel in very early on.

Therefore unless the IPO simplify the due-diligence process and remove all the legal jargon from it, it will not be of much benefit to UK rights owners nor those businesses or citizens wishing to legitimately license works.


Baroness Neville-Rolfe, Minister for Intellectual Property said:

“The UK’s trailblazing orphan works licensing scheme enables access to a wider range of our culturally important works”.

“The scheme has been designed to protect right holders and give them a proper return if they reappear, while ensuring that citizens and consumers will be able to access more of our country’s great creations, more easily”

That’s a worthy cause indeed and therefore complete transparency is expected.

It is likely that the register content will focus on older works housed by Libraries, Museums and Associations far more than recent works already digitised and found in the public domain without any identifiers linking the work to the Copyright owner.

Creators, businesses and consumers need to easily understand why this is important to them

A bug bear remains concerning the lack of engagement with Creators to communicate and advise Creative Industries to IP tag  / identify their works by whatever means suits them. Doing so would assist Creators to take appropriate actions to identify their works and avoid the Orphan Works label.

Why is it that the IPO and C.I representative bodies, collection societies and others appear to persistently fall short on providing best practice advice to Creative Industries on this vital subject. A cynical view might be that the issue lies with a potential reduction in an opportunity to earn revenues should Creators take more control over the identification of their IP Rights.

Another recent change in EU licensing legistlation comes into affect this month. It is the Extended Copyright Licensing (ECL) directive which will give legitimacy to Collection Societies to negotiate costs and the terms of use to grant licenses for multi-party works on behalf of their members and non-members (the majority) in the sector they represent. Members and non-members alike will need to rely upon decision making and transparency of the Collection Societies and their communication with the community they represent, to ensure royalty fees gained from ECL's do reach the Creators.

ECL's are prevalent in TV and Film sectors where it is neither time nor cost efficient for 'Head Licencees' to deal with 100's of individual rights holds to negotiate individual permissions, terms and licenses. Thereby collection societies who represent the interests of their memberships, agree the head license and distribute royalties to their members and non-members. However, the onus is on non-members to follow the society and be aware of ECL's agreed for works that include their rights and a % of royalties and stake their claim accordingly.    

Creative Barcode neutrality and empowerment

Offering an earlier ‘heads-up’ than we had planned, Creative Barcode confirms that it is in the process of developing an API to enable third party organisations to integrate its IP Tags system, into their platforms and portals. The API will be available to public and private sector organisations on an affordable license and a revenue share basis.  

Collection Societies, collection owners & their guardians, representative bodies, corporate and public sector organisations, could, arguably, develop their own propriety identifier systems. However, it could be more beneficial to integrate an established third party system of identification, consistently and visibly, to enable their Rights Owners to swiftly and cost effectively identify and manage their IP and dictate their own usage terms & permissions. Rights owners need to be able to manage their digital assets and prevent their assets from becoming labelled as ‘orphan works’. And equally assist rights users and consumers to understand and recognise the need to license and where applicable to pay for usage of works. Importantly this must be fast and easy to do.

Orphan Works in the digital age will grow at an expotential rate. A simple way to turn the tide is to engage the creative industries and communicate in the simplest of terms the importance of IP Tagging/ identifying their works and empowering them to do so easily, before they release their property out in to the Wild West of the public domain.



Maxine J Horn
Creative Barcode

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