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How should we deal with an orphan work which we wish to incorporate in a website when we can't trace the copyright owner to ask permission?

 

For those unfamiliar with the terminology, an orphan work is one whose owner cannot be identified. The problem is that if the work is in copyright, its reproduction and publication will be an infringement of copyright unless the copyright owner has given its permission/licence.

 

The starting point to obtaining permission to use a copyright work is to consider:

 

·           Who was the original author/creator?

 

·           Did he create the work in the course of his employment?

 

·           Is he dead and, if he is, who are his heirs?

 

·           Have the rights been sold or assigned (transferred)?

 

·           Has a collective rights society been asked to collect fees?

 

Very often it is impossible to answer even the first of these questions. Many works have no copyright notice and, even if there is a copyright notice, there is no guarantee that the person named in it is the real copyright owner or that the copyright hasn't been assigned in the meantime.

 

Organisations large and small spend an inordinate amount of time and money trying to trace "lost" owners and obtain permissions.  Very often, no matter how large their resources, they fail.

 

At the moment there is no solution to the problem. The US Copyright Office and the UK Gowers Review of Intellectual Property have both considered it. 

 

In the US the proposed solution is to limit the liability of users of orphan works so that, provided they have made a reasonable search, they will not be liable for infringement but, if the owner subsequently appears, the owner will be entitled to a proportion of the revenues received from any commercial use of the work. Users should then negotiate a fee if they wish to continue using the work.

 

The British Screen Advisory Committee made similar proposals to the Gowers Review, but implementing that sort of solution will involve a change to the European Information Society Directive. The Gowers Review recommends that a change be made to the Directive, but it will be a while before the law provides any solution to the problem.

 

In the meantime there are some steps you might take in your efforts to find the copyright owner, at least where you have something to go on.

 

If you want to use any material from a book or journal, you should contact the rights department of the publisher who may be able to grant a licence, or who may refer you to a literary agent or pass your enquiry onto the author or his representatives. If you want to use material from a website, you contact the "owner" or publisher of that site. 

 

In any case it's worth searching the internet to see what you can find.

 

Another possible source of information is to contact the WATCH file (Writers, Artists and their Copyright Holders) run by the University of Reading and the University of Austin, Texas.  This is a database of copyright owners and contacts for works lodged in libraries in the UK or the US.  Its purpose is to help you to obtain a licence where necessary.  You can find the WATCH File at http://tyler.hrc.utexas.edu/ .  It has useful information on searching in the US.

 

You might try consulting the register of deaths at the Family Records Centre (020 8392 5300) or the Society of Authors, the Authors' Licensing and Collecting Society, the Writers' Guild of Great Britain or the Book Trust.   

 

There are various collecting societies and organisations for owners of literary works, databases, music etc.  You'll find links to them from www.ipo.gov.uk.

 

You might try writing to any biographer of the author/creator and checking directories of authors/artists in public libraries, and writing to well-known agents who might act for the owner.  Try placing an ad in the Times Literary Supplement or other suitable publication.

 

If you still haven't managed to contact the copyright owner, you have to decide whether to use the work without permission.  If you do decide to use the work, you should give what acknowledgement you can and invite the copyright owner to contact you.  That will not absolve you from copyright infringement but, if the author does emerge, he may be more kindly disposed towards you; you may have to pay a fee in return for using the work, but he may decide not to sue you if you have tried to contact him.

 

Contact Details

 

If you would like further advice about any of the issues considered above please contact Christine Reid on 01865 864195 or email her at christine.reid@northwoodreid.com

 

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This article is not intended to be, and should not be taken as being, legal advice. The law often changes and it varies from jurisdiction to jurisdiction; the information in this article is generic in nature and specific legal advice should be taken before acting on any of it.

 

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