NMDC supports Government legislation for an Orphan Works and Voluntary Extended Copyright Licensing 28/9/2012

The Government has published proposals to modernise copyright licensing which would provide museums with a way to more fully use orphan works and apply for an extended copyright license to digitise whole collections. The proposals were debated in the House of Commons on 17th October as part of the Enterprise and Regulatory Reform Bill. NMDC is urging members' MPs to support the legislation, and is working with the Intellectual Property Office as part of a working group to look at the particulars of the secondary legislation. NMDC has also produced this briefing to explain the current impact of museums' inability to more fully use orphan works, the scale of the problem and the benefits both the orphan works solution and the voluntary extended collective licensing scheme would have.

The proposals are:

Orphan Works Scheme

If an organisation wishes to use a work they suspect is an orphan, they would approach the licensing authority (likely to be the Copyright Tribunal) to get the terms of the diligent search required (and these could be sector specific and commensurate with the end use). The licensing authority would place an notice on their website to indicate that there is a wish to use a suspected orphan work.

If no-one comes forward as a result of the notice and the diligent search, the licensing authority will request appropriate remuneration (TBC) and a license will be issued for a defined fixed use. The work would need to be credited.

It is possible that the licensing authority would be able to make decisions on derogatory treatment as it would be assumed that moral rights had been retained. Once a work has been licensed and used, there will be a record inserted (or updated) in the Orphan Works Register. The monies collected will have to go to a bona vacantia fund at the Treasury (like the funds for unclaimed estates do).

Voluntary Extended Collective Licensing Scheme

A collecting society, in consultation with its members, decide whether or not they wish to opt for an extended collective licensing scheme. They may be for some, all or just aspects of their works for specified uses. The collecting society will need to provide evidence of how they represent and get proper agreement from their members and that they are properly representative of that particular group/media etc. IPO acknowledge that this is not a perfect solution because there are not collecting societies for all media. It would not necessarily solve the problems of licensing unpublished works for example.

The Secretary of State will consider the request and if he/she approves they will do so with/without conditions (depending on the request). There will be a notice period for the collection society to make its members aware and it is at that point individual members can opt out.