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Understanding Copyright: An Introduction to Orphan Works for Archivists

Workshop Summary

A free workshop on orphan works – organised by the Scottish Council on Archives in partnership with CREATe – for the archive sector in Scotland recently took place in Edinburgh. Over 30 archivists attended from a range of services, from universities and local government to special collections and business archives. The workshop included a series of presentations about orphan works legislation and relevant research taking place at the University of Glasgow, plus group exercises looking at different collection types, diligent search and rights auditing.
Orphan Works are works where the rightsholder cannot be identified, or if identified, cannot be located after a diligent search. They can include literary, dramatic, artistic and musical works, as well as sound recordings and films. Unsurprisingly, archive collections contain lots of orphan works for a variety of reasons.

The first of these is that copyright is an automatic right: the work is protected from the point of creation and fixation, and there are no requirements to register the work. Second, the copyright term is long (life of the author plus 70 years) and copyright can be assigned and licensed many times over that term. Copyright can also be inherited by multiple family members after death. Further, archive collections also fall prey to the so-called ‘orphan works paradox’ where non-commercial works are more likely to become orphaned, and therefore harder to clear rights in.
New legislation has attempted to solve some of the problems associated with orphan works. An exception to copyright law and a licensing scheme were introduced in the UK in October 2014. The exception is taken from an EU Directive, and the licensing scheme is administered in the UK by the Intellectual Property Organisation.

The exception allows publicly-accessible cultural heritage institutions to make orphan works available online for non-commercial purposes, excluding stand-alone artistic works like photographs and drawings. Institutional users must undertake a diligent search for rightsholders, with the results uploaded to the orphan works database maintained by the Office for Harmonisation of the Internal Market (OHIM). If a rightsholder returns to claim their work, the institution that registered the work as an orphan must provide them with fair compensation. Once a work is registered, it is recognised as an orphan across the EU.

The licensing scheme allows anyone to license any orphan work for any purpose on a non-exclusive basis, whether commercial or non-commercial, so long as the use of the work isn’t derogatory. To use the licensing scheme, you must complete a diligent search for the rightsholder and apply to the IPO for a licence. Non-commercial licence fees have been capped at £0.10 per work, and the fees for commercial use have been set at standard rates. Applications fees start at £20 for one work, rising to £80 for a maximum of 30 works. Returning rightsholders are compensated by the IPO, and works can only be licensed for use within the UK.

The IPO have produced detailed guidance for diligent search relating to literary, artistic and film and sound works. There was an opportunity to scrutinise the diligent search guidance during group exercises based on the Edwin Morgan Scrapbooks, and typical amateur film and oral history collections. Kerry Patterson, project officer on the ‘Digitising the Edwin Morgan Scrapbooks’ project at CREATe, University of Glasgow, gave a presentation outlining some of the issues that have become apparent during a rights clearance simulation on a sample of the scrapbooks, and Andrea Wallace, also based in CREATe, finished the workshop in style, presenting her current PhD research on the surrogate IP rights claimed by cultural institutions when they digitise material in the public domain.