How you can rent your own orphan, and why there are 91 million of them

When it comes to media releases this Kat is a sitting target, which may account for the reason why he received the following missive not once but four times over:

The IPO, based in Wales, estimates the number
of orphan works in the UK at 91 million. 
Bale, most expensive footballer in the world,
cost 91m euro. Bale plays for ... Wales
A new licensing scheme launched today could give wider access to at least 91 million culturally valuable creative works - including diaries, photographs, oral history recordings and documentary films [The figure of 91 million sounds huge, but this Kat is certain that it's a serious underestimate.  Merpel thinks it doesn't matter whether the number of orphan works is nine, 91 or 91 million: the important thing is whether the licensing scheme offers appropriate respect for the interests of authors, owners, prospective licensees and the public at large ...].

These works are covered by copyright, but rights holders cannot be found by those who need to seek permission to reproduce them. Under the new scheme, a licence can be granted by the Intellectual Property Office [IPO] so that these works can be reproduced on websites, in books and on TV without breaking the law, while protecting the rights of owners so they can be remunerated if they come forward [so effectively it's a state-administered compulsory licence scheme, the royalty being fixed by the IPO: there's already such a scheme for patents under the UK's Patents Act 1977 s 48 et seq, though it's manifestly different in that (i) patents aren't orphan works, (ii) the grounds on which they may be granted are circumscribed by public interest criteria and (iii ) provision for such compulsory licences is made under two international treaties: the Paris Convention Art.5A and TRIPS Art.31].
The scheme also aims to reunite copyright holders with their works ["You thought you'd never see those old holiday photos again ...!"] and ensure they are paid for their creations, by requiring the applicant to conduct a diligent search [click here for all manner of IPO guidance on diligent research] and allowing the right holder to search the register of granted licences.
Ground-breaking scheme
This ground-breaking scheme builds on UK and international best practice [Wow! But can any reader point to international best practice?] and is the first to use an electronic application system and searchable register of the licences granted [We hope it's not the last. Electronic applications and searchable licences should be mandatory for all IP rights, says Merpel, especially the registered ones]. It is being implemented alongside the EU Orphan Works Directive [which coincidentally roars into life today] that enables cultural institutions to digitise certain orphan works in their collection and display them on their websites. Together these two schemes will help to display more of the UK’s cultural work at home and across Europe.

The UK scheme will be administered by the UK Intellectual Property Office and is part of the wider programme of work to modernise the UK’s copyright system following the Hargreaves Review. Users will pay a fee to obtain a licence to use the work, which will be kept for the copyright owner should they come forward.
Two fees are payable: one is the licence fee, as assessed by the IPO, and the other is an administrative fee [about which no information is currently available].  Visiting the relevant web page, this Kat clicked here and applied for a licence to use a work described as "Photograph of a cat, 1951" for non-profit purposes. The resulting licence, for
  • Free hand outs for live event, exhibition or similar
  • Use in a live event, exhibition or similar
  • In newsletter, bulletin, e-newsletter or e-bulletin 
  • In non-commercial promotional material – print and digital
  • Digitise and make available on-line, including on social media 
  • Preservation purposes
  • Use on stage or in performance
  • Educational purposes – use in learning/ training materials, including e-learning
  • Use in thesis/dissertation
  • Personal use [it would have been comforting to see the word "blog" explicitly stated in this list, but it's clear that use on blogs is covered]
cost a very reasonable 10 pence, plus VAT.  Reappearing orphans click here to claim their booty. The link to guidance concerning EU Directive eligibility is here and you can search the register here ["Your search for 'cat' did not show any matches"].

This Kat thinks this is all quite fun and will make it easier for businesses to use those awkward works with a good conscience.   Merpel however thinks most people won't bother with it, since it costs nothing to help yourself and the basic rule is "once an orphan, always an orphan -- they don't return".
How you can rent your own orphan, and why there are 91 million of them How you can rent your own orphan, and why there are 91 million of them Reviewed by Jeremy on Wednesday, October 29, 2014 Rating: 5


Vincent Scully said...

If you click through as if to obtain a licence for uncommercial use of such a photograph of a cat, you'll find that the (non-refundable!) administration fee is £20 "for one work"...

Uncle Wiggily said...

Dear Jeremy:

One glance at the "Orphan works diligent search guidance for applicants" should suffice to remind many potential users of this system of the old adage that "It is often easier to ask for forgiveness than to ask for permission."

Best regards,

Uncle Wiggily

Jeremy said...

Thanks, Vincent, I obviously wasn't diligent enough in my clicking exploits!

Ron said...

Users will pay a fee to obtain a licence to use the work, which will be kept for the copyright owner should they come forward.

... and of course when, as I suspect will generally be the case, no owner comes forward, it's a nice little earner for HMG. Experience suggests that,where there is a pot of unclaimed money, HMG will find a way of getting their hands on it.

Anonymous said...

I was enjoying the Gareth Bale - 91 million - orphan works tenuous linking.

It'll make for a wonderful conspiracy theory.

Shall we say Gareth Bale is responsible for the orphaning of these works?


john r walker said...

I put in a request to the IPOs orphan licensing system re a photograph titled : "girl in park". When I selected non commercial use it returned a cost of 10p (+ 20 pounds admin fee).
I then redid the application as one for a possible commercial use.

This is what the system then returned:

Title of work girl in park

Type of work Photograph

Use of work In an external presentation

Where will the orphan image appear in your product? Front cover

How many items do you intend to produce that contain the orphan image? 5,000 or less

How long do you want your licence to last? 6 months or less

What will be the size of the image used in your external presentation? 1/2 (half) of a page or less

Cost for licensing this use
£561.52 excluding VAT

It seems that the price for a license has nothing much to do with the value of 'girl in park' rather it is based on the size of the applicants wallet.

Anonymous said...

John - I think it is perfectly normal (if not necessarily a good thing) for licensing costs to depend on the amount of use more than the inate merits of the work. As I understand it, when Nirvana wanted a picture of a baby underwater for their album cover, the people selling such images wanted so much for such a use that it turned out to be cheaper for them to go and take one themselves.

I'm more shocked by the admin fee. Charging 10p for the actual use and £20 for handling that 10p makes the renewal scammers look good value!

john r walker said...

Dear anonymous at 2 November 2014 23:17:00 GMT
Completely agree, it would be cheaper for the commercial user to take a picture of a child in a park and who would pay a 20 pound admin fee for a non commercial use? Do wonder what sort of genius thought that this was a viable scheme worthy of an Act of parliament and the expense of setting it up

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