IPO Consults on Copyright on Orphan Works: a rather more important topic that it seems

in the 18th Century those who did not publish that for which they had copyright or manufacture that for which they had a patent were liable to lose their protection. There was no copyright protection for works that were out of print and no place for trolls, like those who broke Blackberry for breaching patents they had no intention of bringing to market.

Today the world has moved on even further. Last week the IPO launched its consultation on the secondary legislation (i.e. no debate in Parliament) that some allege will allow others to use the photos you post on Facebook or Instagram – because it is “too difficult” to check their copyright position. This is akin to the defence routine used in the US by those who copy intimate photos to put on public porn websites, whether for cash or for revenge.  

The Government’s orphan works scheme aims to better address the issue of reproducing works when rights holders cannot be found. The UK wide scheme provided under the Enterprise and Regulatory Reform Act 2013, allows for the commercial and non-commercial use of any type of orphan work, by any applicant, once they have undertaken a diligent search for missing rights holders and paid a licence fee.

Alongside the UK scheme, the Government is implementing the complementary EU orphan works Directive. This will allow publicly accessible archives to digitise certain works and to display them on their websites for access across the EU.

This technical consultation is seeking views on the legal effectiveness, structure and effect of the draft secondary legislation only. The overall policy is outside the scope of this consultation.

The closing date for comments is Friday, 28 February 2014.

This may only be a consultation on the details of legislation that has already been decided in Brussels (I cannot find UKIP‘s views on the topic) but it raises interesting questions such as:

  • What is “a diligent search” for the copyright of that which has been posted on a website?
  • How much is the license fee and to whom does it go?
  • What happens if you discover later that it is your photo that some-one else is publishing without informing, let alone paying, you?

Even more interesting is the small print of the routines for allowing “publicly accessible archives” (? the National Archive and British Library or the BBC and Google?) to digitise and display “certain works”.   

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