Factsheet on orphan works and extended collective licensing

The Patent Office has published a Factsheet, Orphan Works Licensing Scheme and Extended Collective Licensing, which should help dispel some misconceptions about how the new law (in the ominously-nicknamed ERR Act) will operate. A good idea: copyright has for many years been more a matter of urban myth than solid legal understanding among many people, and of course the press lead the way in this.

Further details of the system have to await implementing regulations, on which we the public will be consulted (but in which no doubt only Big IP will be listened to).

The Factsheet explains about the criteria which that applicants will have to fulfil before they can use orphan works: a diligent search for the copyright owner, and paying an "up-front" licence fee (surely we are not going to see the expression "up-front" in British legislation?). It tells of the register that the authorising body will be required to keep, explains what a collecting society will have to do before it can operate an extended collective licensing scheme, and assures us that individual rights-holders will be able to opt out of such schemes, without charge. Wow, you won't have to pay not to be a member of something! That is magnanimous.

The Factsheet also says that as far as artistic works are concerned (and here we are talking almost exclusively about photographs - indeed, they are surely the largest category of orphan works) the orphan works licensing scheme is expected to be used for historical photos for which there are no substitutes, not contemporary digital photos found online (from which data enabling the copyright owner to be identified has so often been stripped - making this a rather optimistic-sounding statement).

Enterprise and Regulatory Reform Act commencement

The Government has announced when the copyright provisions of the Act will come into effect, or at least given some indicative dates. Sections 75 to 78 and Schedule 22 already came into force on 25 April 2013. BIS proposes that regulations to implement section 76 (Power to reduce duration of copyright in transitional cases) will be in force by April 2014, and that regulations to implement sections 77 (Licensing of copyright and performers’ rights) and 78 (Penalties under provision implementing Directive on term of protection) and Schedule 22 (linked to section 77) will come into force by October 2014.

As for section 74, which will repeal section 52 of the Copyright, Designs and Patents Act 1988, that requires further consultation, though the new Intellectual Property Bill looks as if it will make that otiose (on which subject, see David Musker's posting on the Class 99 blog the other day.

Chnges to copyright law: industrial designs, orphan works, collecting societies

Significant changes to the copyright law will happen now that the Enterprise and Regulatory Reform Act 2013 has become law.  It received Royal Assent on 25 April 2013.  Probably the most significant thing it does is repeal Section 52 of the Copyright, Designs and Patents Act 1988, so industrially-exploited artistic works will benefit from copyright protection for the full term of life plus 70 years instead of having the term cut short to 25 years, to match the protection available under the Registered Designs Act.  The change seems to have been considered necessary to comply with the Designs Directive.

The 2013 Act will also lead to the introduction of a system for licensing orphan works, as well as a clearance procedure for using individual orphan works.  As far as the Act is concerned, it only empowers the Minister to make regulations to do these things, so we must wait to see the form of regulations, but in the meantime right holders and photographers in particular are anxious about what this change in the law will mean for them.  One important matter that worries everyone who will be affected by this change is what exactly will be required in the way of a “diligent search” before advantage can be taken of the new rules.

The Act also gives the Secretary of State power to introduce a code of practice for collecting societies.  But one thing it does not do is enact provisions to make it much easier to amend the exceptions to copyright protection which the Hargreaves Review recommended.  The provisions originally included in the Bill were watered down by Parliament, and a good thing too.