New U.K. Orphan Works Law Causes a Stir

The United Kingdom recently approved the Enterprise and Regulatory Act. Among other provisions, it amends how British copyright law treats “orphan works.”

The Enterprise and Regulatory Act defines an orphan work as a copyrighted work for which the copyright owner cannot be found “after a diligent search made in accordance with the regulations.” If the owner cannot be found, the law allows media publications or others to obtain a license to use the image. The copyright license fee is then held should the rights holder come forward.

As Wired reports, many commentators broadly interpreted the law to mean that pictures from popular social media sites like Facebook and Instagram would qualify as orphan works, as it can be difficult the owners’ real name and contact information. The new law caused such a stir that the Intellectual Property Office stepped in to clarify it.

“Owners of photographs posted online will not lose control of their copyright under changes outlined in the Act,” said a spokesperson. “Nor do the changes mean anyone can use a copyright work without permission or free of charge. If someone copies a photo posted online they still need the permission from the rights holder of the photo to do so. If they don’t have this permission they will have to apply for and buy an orphan works license.”

Despite the Intellectual Property Office’s reassurances, critics of the law still contend that it will hurt photographers and other rights holders. They are specifically concerned with the stringency of the due diligence requirement for locating a work’s owners. The specific details of the licensing process are also still being flushed out with stakeholders. We will continue to monitor this legislation and provide updates as they become available.

Stay up-to-date on the latest Intellectual Property Law news from Sheldon Mak & Anderson.

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