This allows individuals and institutions wishing to use a work of intellectual property where the rights holder cannot be identified to apply for a licence from the IPO. Licences are awarded where the IPO is satisfied that the applicant conducted a “diligent” search for the rights holder, and they have paid a licensing and administration fee.
This scheme brings forward little that is new. The rule allowing re-use after diligent search has been part of copyright law in the UK for many years. The primary purpose of the new licences seems to be to provide greater certainty to re-users that the searches they have undertaken are sufficiently extensive to guarantee legal protection should the copyright owner come forward.
Searches have to be exceptionally comprehensive before the Intellectual Property Office will certify them as ‘diligent’ and although there are new guidelines which will provide greater clarity for cultural institutions, the imposition of an official fee is concerning.
Even with this new scheme in place orphan works can still not be easily used by the Wikimedia projects and the volunteers who write and curate them.
A real solution to the orphan works problem must await a more radical approach that goes beyond both this and the existing EU Orphan Works Directive.
We believe that this should be addressed as part of a more far-reaching review of copyright as a whole, at a national and European level. For example, a simple reduction in copyright terms would instantly make many works which are currently orphaned available for reuse.
You can see the recent Free Knowledge Advocacy Group EU position paper on copyright reform – of which we are a signatory – here.