Orphan works legislation implemented in the UK

29 October 2014 saw the implementation of legislation to facilitate the use of orphan works in the UK. An orphan work is defined as a copyright work or performance for which one or more of the rights holders either cannot be identified or cannot be located, thus making it impossible to seek permission for use of the work.

Use of orphan works is now permitted under two different routes: the implementation of the EU Directive 2012/28/EU, or under the UK Licensing Scheme.

The EU Directive provides an exception which allows educational establishments, museums, publicly accessible libraries and archives to use an orphan work for non-commercial purposes after conducting a diligent search. It should be noted that this exception excludes stand-alone artistic works (e.g. photographs, paintings etc.) After having performed a diligent search, the orphan works must be registered on the OHIM website. The Directive is implemented through the Copyright and Rights in Performances (Certain Permitted Uses of Orphan Works) regulations 2014.

The second route is the UK Licensing Scheme. Once again a diligent search is required, but where this scheme differs from the Directive is that it is not limited to any particular kind of establishment, it includes stand-alone artistic works and an orphan work can be used for both commercial and non-commercial purposes. However, this comes at a price – an administration fee and licence fee are charged, with licences lasting for seven years in the first instance, with the potential for renewal. The Licensing Scheme has been implemented by the Copyright and Rights in Performances (Licensing of Orphan Works) Regulations 2014.

The UK IPO has published guidance on how to conduct a diligent search.

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