Orphan works
If you didn't already know, orphan works are works suspected to still be in copyright but whose authors are not known or can't be traced. They present a problem for archives and museums primarily, but also libraries that may have large collections of images (possibly on slides) or audiovisual works created by government departments or companies which no longer exist.
Currently it is not lawful to copy audiovisual works for preservation, and large collections of ‘orphan' images cannot be digitised without the permission of the rightsholder, who is either not known or cannot be traced. No licences exist for this sort of activity, and librarians, archivists and curators have to sit by helplessly, watching collections deteriorate in front of their eyes. And collections can't be opened up to public access outside of their physical location, so opportunities to make collections available on a website are lost, or potentially risky at best.
The Government has proposed to tackle this situation with legislation because other solutions (such as taking out some form of insurance) are not satisfactory as they expose users to civil or even criminal liability. They have suggested creating a central registry of orphan works which would aim to re-unite orphans with their original creators. There woul d be a further requirement to conduct a diligent search for the rightsholder. The benefits of legislation in this area would allow the cultural heritage sector to digitise and make orphan works available for public view, with the potential for re-use in a number of other media such as television documentaries. The exception is planned to be for all types of work, both published and unpublished, and for both commercial and non-commercial use.
What the Government wants to know:
1. Who should authorise the use of orphan works and why? (e.g. should it be the Copyright Tribunal or collecting societies?)
2. What should a diligent search look like and would it be useful to have the authorising body conduct searches on your behalf?
3. Should payment for the use of orphan works be made at market rate, and how should this money be held, e.g. in an escrow account or delayed payment should the rightsholder come forward?