A unique aspect of copyright, when compared with other intellectual property rights, is that copyright law grants the author of a work certain rights by virtue of his or her creation of the work. In other words, copyright arises automatically on creation and lasts for an extensive period thereafter.
While active registration may not be required in this country, there are often advantages in doing so in jurisdictions such as the US, and in some countries registration is required.
The creator of a work automatically gets copyright protection for their lifetime and for 70 years after their death. For some, this extensive protection and lack of any formal registration requirement is a favourable aspect of the copyright regime, because it tends to promote the creation of new works.
Even if a derivative author wishes to gain permission to use another’s work, he or she may not even be able to trace the copyright owner, let alone ask for permission. This is a serious disadvantage in the digital age where great emphasis is placed on immediacy and speed.
A well known example of this occurred during the development of the Google Books project. Google found they were simply unable to establish who the copyright owners were for numerous texts. What once appeared to be an advantage of an efficient copyright regime requiring no initial formalities has been subsequently rendered a rather cumbersome obstacle when applied online.
‘Orphan works’ are works where the copyright owner cannot be located. This is by no means a small problem. In fact, the British Library considers 40% of its in-copyright stock to be orphaned.
In the United Kingdom, a would-be derivative author must show they made ‘reasonable efforts’ to trace the current copyright owner. However, this protection only applies to anonymous and pseudonymous works. In reality therefore, there is little scope for a potential borrower to do so without causing copyright infringement. Should the copyright owner be found, the process is likely to cost time and money – this is, therefore, perhaps not a viable option in practice.
The Digital Economy Act initially included a clause permitting the use of orphan works whose author could not be found. The user would first have had to carry out an ‘adequate’ search, and if no author was found they would be entitled to use a work subject to payment of a fee to the government. However, some felt that this would lead to widespread theft of content, especially photographs, and the clause was eventually removed.
Other jurisdictions are friendlier to persons wishing to utilise orphaned works. Canadian law, for example, employs a licensing scheme that allows licences for orphaned works to be issued following a search of “reasonable efforts” by the potential user. In the US, a similar light-touch system has been recently proposed that would actively enable the use of orphan works in a similar manner.
Until such time as the UK reforms this area of copyright law, which currently seems out of sync with the internet age, companies should be wary of using orphan works. There are better alternatives; namely, identifying and using works licensed under the Creative Commons system, which is growing in popularity.
Creative Commons, while perhaps not best-suited to academics or researchers, makes perfect sense for businesses and individuals. The prospective user is able to see exactly what uses of a piece of work are allowed, and the process of acquiring copyrighted work is sped up immeasurably. Such a system pre-empts enquiries regarding re-use and renders a search into the whereabouts of the copyright holder unnecessary.
Shireen Smith is a solicitor specialising in intellectual property, technology and internet law. Shireen qualified over 20 years ago and founded Azrights Solicitors 6 years ago. Azrights focuses on helping small and medium enterprises protect and exploit their investment in brands, design, and technology, and advises them on doing business online. Looking after SME clients requires unique skills and knowledge; client needs from an IP lawyer are subtly different to those of big business.