Generally, copyright in a literary, dramatic, musical or artistic work is not infringed by an act carried out when it is not possible by reasonable enquiry to identify the author, and it is reasonable to assume that the copyright has expired or that the author died over 70 years ago. Works falling into this category are called “orphan works”.
The UK Intellectual Property Office has published a fact sheet about how the orphan works and collective licensing system will work. It corrects misunderstandings and inaccuracies and explains that the public will be consulted on the details. The document sets out what applicants should do before using orphan works, including making a diligent search for the copyright owner and paying an up-front licence fee. Collective licensing and what will be required in order to run a scheme is also explained. Individual rights-holders will be able to opt out of any such scheme free of charge. The IPO says – in relation to artistic works for example – that it expects the main use of the orphan works licensing scheme will be for unique old photographs of historical interest for which there are no substitutes, rather than for contemporary digital photos found on-line.