Chapter 9

Copyright and Digital Cultural Heritage: Orphan Works

Written by Ronan Deazley, May 2017

In recent years, successive governments have encouraged the cultural heritage sector to make their collections available online, enhancing access to meet user expectations in a digital, networked world. But, enabling online access to material that is still in copyright requires rights clearance, an activity widely perceived to be a barrier to the digitisation and dissemination of library and archive collections. There are various reasons for this. Determining whether a work is in copyright or is public domain can be difficult (see Duration of Copyright). The time and effort involved in identifying, locating and contacting known copyright owners can be prohibitive, especially when dealing with large numbers of works. Identifying and locating rights owners provides no guarantee of a response from that owner. And, copyright owners cannot always be identified or located: the orphan works problem.

The UK has adopted a twin-track solution to the orphan works problem in the form of an exception based on the Orphan Works Directive and an Orphan Works Licensing Scheme (OWLS). Both the exception and the licensing scheme turn on carrying out a diligent search for the owner(s) of the copyright in the work. While the orphan works regime may have value for small scale digitisation initiatives, the mandatory nature of this diligent search requirement means the regime is largely irrelevant for mass digitisation schemes. Put another way, mass digitisation and diligent search are fundamentally incompatible.

In this commentary, we provide an overview of the legislative framework concerning the lawful use of orphan works in the UK and Europe.

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