How can copyrighted works be used when the rights holder is unknown?

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What are Orphan Works?

The term ‘orphan works’ is given to creative works and performances that are subject to copyright, but for which the right holder or holders cannot be found. These works can include diaries, a photograph or a piece of film or music. As they are still subject to copyright, a person or company wanting to reproduce the works will still need permission to do so. Therefore, a musician wanting to reproduce a music sample or a director wanting to use a short piece of film that are considered orphan works, would need to obtain the right to use these works before they can be used.  However, as the creative works are now ‘orphans’, finding the rights holder can be difficult. 

How Can Orphan Works be Reproduced?

A person or organisation may be able to reproduce orphan works by obtaining an orphans works licence. The licence will allow the person to use the works for commercial and non commercial purposes and can last up to 7 years. The licences are able to be renewed, but can only be used within the UK. 

However, before applying for a licence a person must carry out a diligent search for the right holders. This can be done by searching the orphans works register and researching multiple sources. There is no set structure as to how a diligent search should be conducted. Applicants can also search whether the works fall under a copyright exception, as this will mean that a licence is not needed. 

To apply for a licence, a person must complete an online application and pay an application and licence fee. The fees are calculated and displayed at the start of the online application process before a person decides whether to go ahead with their application. The fee will depend on how many different works and uses they want to license.

What Will Happen After an Application is made?

Once an application has been submitted, the intellectual property office will get in contact to say they have received the application. If an application is successful, the IPO will ask if the applicant wants to proceed with all the works and uses they have requested. They’ll be able to remove any works or uses from the application at this stage. If an applicant wants to add works or uses, they’ll need to submit a new application. This is where the licence fee will be paid and whenever the work is used, the licence holder must: 

  • Provide contact details for the IPO
  • Include the orphan works application number and, 
  • Credit the right holder if their name is known.

It must be noted however, that an application may be refused if the IPO believes that a diligent search has not been made, or that the proposed treatment of the work is derogatory. 

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