Copyright gives the owner the right to control the use of certain kinds of ‘work’ which are the result of the author’s creative skill or which have involved an investment of time, effort and/or money by the owner. There is copyright in an ‘original’ work as soon as it has been created: there is no need to do anything more though the use of the copyright symbol © draws attention to the fact that the work is protected.
Types of work
Copyright applies to:
Any original work recorded in words, numbers or symbols, regardless of literary merit, including letters of all kinds, books, articles, financial accounts, computer programs and databases
Any original work that can be performed, such as a play, ballet choreography or a film screenplay
Original works of music (excluding any words sung with the music)
Original two-dimensional graphical works, such as paintings, drawings, photographs, maps, charts, diagrams and logos, and three-dimensional works such as sculptures, collages and buildings, all of them irrespective of artistic quality so long as the purpose is artistic
Recordings on any medium by which a moving image may be produced. There was no copyright in a film created before 1 June 1957, but each frame was protected as a photograph. A film includes its sound track, but if separated from the film the sound track is also protected as a sound recording
Recordings of sounds, including recordings of literary, dramatic and musical works. Note that this is copyright only in the recording as a recording -- there may be a separate copyright in the content
Transmissions to the public of images, sounds or other information at times determined by the broadcaster
Typographical arrangements of published editions
The appearance of the printed page
Note that some types of work must be original. This means that they must be intellectual creations of a human author or authors, reflecting his, her or their personality.
The author is the person who creates a work, and (in the case of literary, dramatic, musical and artistic works) the person whose life determines duration even if the copyright is owned by someone else (for instance because it was created by an author who was an employee). For creations with more than one author, such as anthologies or editions with an editor’s introduction, each individual contribution is a distinct work with its own author, but if the contribution of each author cannot be distinguished it is a work of joint authorship. A translator is an author too.
Copyright lasts for a long time. The following are the standard terms, but there are many variations:
Literary, dramatic, musical and artistic works
70 years from the end of the year in which the author died. For creations consisting of words and music written to go together and for works of joint authorship, duration is 70 years from the end of the year in which the last of the authors died. Anonymous works (including works issued by corporate bodies without identification of authors, and pseudonymous works whose true authorship is unknown) are in copyright for 70 years from creation or (if published within that period) for 70 years from publication. For literary, dramatic and musical works that existed before but were unpublished on 1 August 1989, duration is to the end of the year 2039 at the earliest, no matter how long ago the author died.
70 years from the end of the year in which the last of the following people died: the principal director, the author of the screenplay, the author of the dialogue and the composer of music written especially for the film
50 years from the end of the year of creation, unless the recording is published, played in public or communicated to the public (eg by being broadcast or made available on the internet) within that time in which case it is 70 years from the end of the year it was first published, played or communicated
50 years from the end of the year the broadcast was made
25 years from the end of the year of first publication
The first owner of copyright is:
Of most literary, dramatic, musical and artistic works
If the work was created by the author in the course of employment or apprenticeship (but note: it is still the life of the author that determines duration in relevant cases).
The owner of the negative or plate
At the moment the photograph was taken, in the case of a photograph created between 1 July 1912 and 31 July 1989
The person who commissioned and paid for the work
In the case of engravings, portraits and photographs created before 1 August 1989
The producer and principal director jointly
In the case of a film
The person/body who made the arrangements for the recording, in the case of a sound recording
In the case of a broadcast
In the case of a typographical arrangement
Note that ownership can be assigned by the owner. The assignment must be in writing and be signed. Ownership can be assigned even before the work is created, for instance in a commissioning contract.
‘Fair dealing’ is a term that applies to several of the exceptions and limitations to the rights of copyright owners. For a use of a work to be fair dealing, the purpose must fall within the scope of the particular exception or limitation, and it must be fair. There is no legal definition of what is ‘fair’, but the courts have decided that it depends on the facts and impression in each case. Issues to take into account include:
- does the use mean that you are creating a substitute for a commercially available copy?
- are you copying only as much as you need for the immediate purpose? Is that quantity reasonable and appropriate? It will usually not be fair to copy an entire work, but could be in appropriate circumstances.
- what proportion of your work is comprised of the work of others? To be fair it should be quite small.
- if your use is for criticism or review, has the work you are using been made available to the public?
- would a fair-minded and honest person think that your use was fair?
- have you identified the work and acknowledged the author (unless the work was published anonymously or, if unpublished, it is impossible to identify the author by reasonable enquiry)?
FAQ on copyright
Questions applicable to everybody
1.1 How much may I copy for myself, or have copied by the library, from published works?
Anybody can copy an 'insubstantial part'. This is not defined in law, but almost certainly precludes anything materially useful by itself. A single copy, in any format, of a 'substantial part' may be made under fair dealing for private study or for research for a non-commercial purpose, and the generally accepted upper limits of what constitutes a substantial amount that can be copied within fair dealing are as follows:
- one copy of one article in a serial publication or in a set of conference proceedings or in a collective work (other than a poem, short story or other literary work in a collection of such works)
- one copy of one complete chapter from a book
- one copy of one case report from a law report
- up to 5% of a physical volume of any of the above (which may be greater than one article, chapter or report, or may include extracts from more than one such article, chapter or report)
- one short story or poem in a collective work, up to ten pages in length
- an area of a map equivalent to an A4 sheet
- up to 5% of a sound recording
- up to 5% of a film
Any more than this is probably not fair dealing. Nor is it fair dealing to copy, say, one article from a book or journal on one occasion and another article from the same book or journal on another occasion. Note also that introductory and similar matter (title pages, contents lists, bibliographies, notes) are not excluded, but should be treated as chapters or articles.
A library may make and supply to you a copy, in any format, of part of a published work within the same limits. The librarian will ask you to complete a copyright declaration, which limits your use of the copy to private study or non-commercial research.
1.2 How much may I copy from electronic materials?
Fair dealing for non-commercial research or private study applies to electronic as to hard copy materials (see 1.1), and copying for these purposes may be carried out regardless of the terms of any licence. The University subscribes to gain access to electronic journals and other materials under licence. Licence conditions vary, and should always be checked if you wish to copy more than is permitted under fair dealing: ask a librarian for information. Disregard of the licence conditions relating to downloading and printing of more than is permitted under fair dealing can result in the University's access to the journal being blocked.
1.3 How about quotation in publications?
Fair dealing also covers the use of short extracts from a work (up to about 400 words, or several shorter passes totalling less than 800 words have been widely accepted as fair) for criticism or review, provided that adequate acknowledgement of the author and the source is given. Works of all kinds except photographs may also be copied for the purposes of current news reporting.
1.4 If the work is out of copyright, may I copy it freely?
You may quote from an out of copyright work as extensively as you like.You may also make copies of a published edition of a work in which copyright has expired so long as it was published over 25 years ago. Before then, the typographical arrangement (the appearance of the printed page) has a separate copyright. So you may not copy large parts of, say, a Dickens novel if the printed work you are using as the source of the copy was published in the last 25 years.
1.5 I own this book/journal, so why can't I photocopy as much as I want of it?
You have bought the physical item, you have not bought the intellectual property rights in it. The copyright-holder has the sole right to make copies or allow them to be made, apart from the exceptions allowed by law such as fair dealing.
1.6 May I scan this article to include in a website?
1.7 May I copy this work onto a different medium?
You may rely on fair dealing to make a single copy within the limits set out above (see 1.1) for your private study or for research for a non-commercial purpose.
You may also make a personal copy of the whole of any kind of work except a computer program, so long as you own the source copy, and you may copy that copy. The copies you make are for your own personal, non-commercial use: you may lend them temporarily to a friend but they may not keep or copy them. If you cease to possess the source copy you must destroy all personal copies. You may therefore, for instance, make copies to your MP3 player of CDs that you own, or copy your DVDs to your private cloud storage. You may not make personal copies of works that you have merely rented or streamed.
1.8 What may I do with a web page without seeking permission?
You may print out a copy of a web page for your own personal use. You may make a single copy to print or store electronically for fair dealing for private study or for research for a non-commercial purpose. Look for a statement on the page or follow links such as 'Copyright', 'About this site', 'Legal', or 'Help' to find out what further use is allowed. You can ignore the statement if it says you may not copy at all: whatever it says, you may make and keep a fair dealing copy.
1.9 May I include this link in my web page?
You may include a link to any publicly accessible page of another web site, unless you know or have reason to believe that the target site carries infringing or otherwise unlawful material. You should not make it appear that the contents are your own and it is good practice to make clear that the user is leaving your site This means that you should not display the linked material within a frame so that the title bar and address bar still have your title and URL. You should refresh the entire window or open it in a new window. If a site owner asks you to notify them when making a link, you should do so. If a site owner asks you to remove a link, you should usually do so.
1.10 How do I get permission to copy or quote material?
Look for the copyright statement. If the work is copyright of the publisher, write to them. If it is copyright of the author, write to the author, care of the publisher. If the author is dead, the publisher should know the literary heirs. If the publisher is now untraceable, try to write directly to the author or his/her heirs.
There are some web sites which help in tracing rights owners, especially WATCH: Writers, Artists, and Their Copyright Holders (www.watch-file.com/). You could also try contacting a relevant licensing body, such as DACS for artistic works (www.dacs.org.uk) or the Music Publishers Association (www.mpaonline.org.uk) for sheet music. For a list of licensing bodies, look under 'members' of the British Copyright Council (www.britishcopyright.org).
In cases of doubt you should seek legal advice.
Note that you must never write to a copyright-holder to the effect, 'If I do not hear from you, I will assume that you give permission'. Consent must be explicit: no reply means 'no'.
1.11 I have taken a picture of an unpublished document in the Library. What may I do with it?
The first thing to think about is whether the document is still in copyright. Look at the introductory section on duration, above. If copyright has expired you may reproduce the image in any way you like (see 1.4).
You may make and keep a copy of any kind of copyright work for purposes of non-commercial research or private study, so long as your copying is fair dealing. For more on that, see the introductory section on fair dealing, above and also see 1.1.
You may publish (in any way, including online) an image of a document for purposes of criticism or review, so long as it is fair dealing and there is genuine commentary on the document or on the category of works that it represents. You may also publish an image of any kind of document except a photograph for purposes of current news reporting, so long as it is fair dealing and the news is genuinely current. See the introductory section on fair dealing and also see 1.3.
If the document is a literary, dramatic or musical work (including any illustrations) that is at least 100 years old and whose author has been dead for at least 50 years, and it has never been published, you may publish it (including by reproducing it online) so long as you do not know who the present owner of the copyright is.
For use on a secure network such as Weblearn, see 4.6.
For any other use of a copyright work you need permission before you may lawfully reproduce it in a publication or online. For information on the use of orphan works (where the copyright owner is unknown or untraceable even after a diligent search) see 6.1 to 6.7. For advice on tracing rights owners see 1.10.
2. Questions on non-textual materials
2.1 What are the rules on copying maps?
Maps are artistic works. Older ones are likely to be engravings, which might affect the duration of copyright if they are unpublished.
Libraries may copy parts of copyright maps on your behalf, but the librarian will ask you to complete a copyright declaration which will limit your use of the copy to private study or non-commercial research. You may make for yourself a fair dealing copy of part of a map. In both cases, an A4-sized extract is likely to be as much as is allowed.
2.2 What are the rules on copying UK Government or Crown publications?
Most Crown Copyright material, including legislation, unpublished public records, government press notices, government websites (unless otherwise stated) and National Curriculum material for England and for Wales, may be copied freely under the terms of the Open Government Licence (see http://www.nationalarchives.gov.uk/information-management/uk-gov-licensing-framework.htm).
Some Government departments and agencies and some non-Crown bodies have a delegation of authority from the Controller of HMSO and are not covered by the Open Government Licence. They issue their own licences instead. See http://www.nationalarchives.gov.uk/information-management/our-services/delegations-of-authority.htm
2.3 What are the rules on copying UK newspapers?
Fair dealing applies, as above. Beyond that, Oxford University has a licence agreement with the Newspaper Licensing Agency (now called NLA Media Access) but it is complex - the University's Press and Information Office should be consulted about any proposed use.
2.4 What are the rules on copying printed music and recorded music?
For non-commercial research or private study of printed music, fair dealing rules apply, but it is difficult to copy just 5% of a musical work. The Music Publisher's Association says that anything copied should be less than a performable piece to be used for study, and should not be intended or used for performance. A licence from the MPA will be needed for copying for performance.
Fair dealing copies for non-commercial research or private study of short extracts of sound recordings may be made. Copying of an entire recording (including changing medium, e.g. film to video, obsolete or incompatible video format to DVD, DVD to hard drive) is not permitted, except for preservation purposes by a library, archive or museum (see 5.5) or for personal use if you own the source copy (see 1.7).
2.5 What are the rules on recording radio and TV broadcasts (not Open University)?
Oxford University has an ERA (Educational Recording Agency) licence which means that you may make off-air recordings (including satellite and cable broadcasts) for educational purposes. The law also states that if no licensing body is authorised in this country to license a broadcast, it may be recorded. This means that you can also record non-UK programmes. Note that Open University programmes are excluded as there is a separate licensing scheme for them.
2.6 What are the rules on recording Open University TV broadcasts?
Oxford University has an Open University licence. It includes a pay-per-item-per-year provision, and Academic Services and University Collections should be notified of any copies made (email firstname.lastname@example.org).
2.7 What are the copyright issues involved in Oral History and similar projects?
The Oral History Society (www.oralhistory.org.uk) has good guidelines. The copyright in the words spoken (provided they are original) resides with the speaker, whether interviewer or interviewee, and it is important to make clear to an interviewee the uses to which an interview will be put (including potential future uses) and to get signed agreement to those uses. The copyright in the sound recording belongs to the producer (i.e. the person/body who made the arrangements for the recording).
Although form-filling may be irksome, it ensures that informants are made aware of the purpose of the interview and its future use, and that interviews are not subject to exploitative or other undesirable uses. If you have older recordings of interviews for which you have no written permission for use, you might have to treat them as orphan works (see 6.1 to 6.7).
2.8 What are the rules on making copies of artistic works (eg from illustrations in books)?
Fair dealing applies, as above. If the copies are to be used to illustrate a presentation or some other activity for an educational purpose, they may be made for that purpose within the limits of fair dealing (see 3.1, 4.10). Scanned images may be made available on Weblearn under the Copyright Licensing Agency (CLA) licence (in the case of illustrations to written material contained in published editions that is also being copied) or after obtaining a tailored licence from the Design and Artists Copyright Society (DACS), but see also 4.6.
2.9 May I include this image in my web page?
3. Questions applicable to students
3.1 May I reproduce this material for my thesis / dissertation / project / essay?
A lecturer or student may make a single copy of any kind of work for the purposes of illustration for instruction, which includes use in preparing a lecture, preparing for study, use in essays and project work, answering examination questions, and the submission of a thesis or other material upon which you will be examined and assessed, so long as your use is within the limits of fair dealing (see above). You need in particular to consider whether you may legitimately copy an entire work. If the material is a web page or similar, it must only be accessible to the lecturer or those who will assess it.
This exception applies only for the purposes of instruction and examination and does not extend to any subsequent use you may want to make of the material, including putting it on a web site, publishing it as a book, or putting copies on public display. If you want to do any of these things or you have used material beyond the 'fair dealing' limits, you must obtain permission from the copyright holders.
3.2 May I reproduce sheet music for performance in an examination?
Fair dealing will not permit the making of a copy of an entire work for use by the examinee or by an accompanist; the score should be purchased or hired. However, the Music Publishers Association permits the making of copies of the work for use by the examiners, so long as these copies are destroyed after the examination has ended. The MPA also permits the making of copies of individual pages so as to simplify a difficult page turn.
4. Questions applicable to staff
4.1 I wrote this paper / chapter / book, so why can't I photocopy as much as I want of it?
Many journal publishers and some book publishers ask or require authors to assign copyright to them for publication. If you have done that, then copyright now belongs to the publisher and your position is no different from anybody else who wants to copy material: fair dealing rules apply. In recent years many publishers also offer a 'licence to publish' contract which leaves copyright with you while still protecting the publisher's commercial interest, notably its right to publish future editions. It is worth asking about these if you are sent a copyright form to sign.
4.2 Can I copy this for my research?
The basic 'fair dealing' rules apply (see 1.1) but research must be for a non-commercial purpose. What counts as' commercial' is not defined but informed opinion suggests that it may include work done by an information broker, work done in drafting a book or book chapter for which the copier knows royalties will be paid, work done to assist in private medicine service, work done for a spin-off company owned by a University or charity (even if all profits are covenanted to the University or charity), work done by lecturers directly to produce a commercial textbook or equivalent, work done in drafting an article for a scholarly journal for payment or royalties, and work done in preparation for a conference speech for which a fee is received. Similar activities which are not directly paid, or are not intended to be work for an ultimately commercial purpose, count as non-commercial. The intention at the point of copying is the key. You can legitimately copy something for research in general at one point in time, which later turns out to be useful in the preparation of a commercial work, but before you use it for that commercial purpose you may need to obtain a licence.
Members of the University are at present covered for commercial research copying of published editions of literary works by the University's CLA Licence.
4.3 Do I need permission to show a copyright image using an epidiascope or similar device?
No, because such devices do not create a copy of the image, but only reflect the original object onto a screen.
4.4 May I print out a web page and duplicate it for my students?
Look for a statement on the page or site which allows further use, you may do as it allows. Look at the site home page, and follow links such as 'Copyright', 'About this site', 'Legal', or 'Help'. If you can't find one, or it does not give permission, then you need to seek permission.
4.5 May I make multiple photocopies for students, either piecemeal or as a pack of course readings?
The CLA licence allows you to do this for material that is held by a University library or to which it has access under a licence and that is part of the CLA’s repertoire. You can check whether a work is part of the repertoire using the check permissions search service.
You may copy a single article from an issue of a journal or the greater of 10% or one chapter of another publication for students for a particular course of study. Each copy must carry appropriate acknowledgement and the copying must be included in the figures reported to the CLA.
If you want to make hard copies to send to distance learners, this depends on whether the students are included in the return of student numbers which the University supplies to the Higher Education Statistical Agency (HESA). If they are, then you may; if they are not, then you may not. Your departmental administrator should be able to advise.
4.6 May I make copies available online to students, including distance learners?
You may make copies of extracts available online for the purposes of instruction to staff and students on the premises of the University and its colleges. You may also make them available online to distance learners (but see the definition of distance learners in 4.5) and remote staff if the network you are using is secure and is restricted to staff and students of the University. You must give the title of the work from which the extract is taken and acknowledge the author unless the work was published anonymously.
There is an exception to copyright permitting this, but it does not apply if, or to the extent that, there is a licence available covering the same use. The CLA licence covers this, but it has exclusions. As a minimum, therefore, the following applies even if the CLA licence does not provide for it:
extracts may be made from any kind of work except broadcasts and free-standing artistic works. An artistic work that is embedded in another work may be copied
an extract may be of up to 5% of a work in any 12-month period
There are many works excluded from the CLA licence, including in some cases all works from certain publishers. The exception applies to these works instead, so they may be made available but should not be included in returns to the CLA.
4.7 What are the rules on copying for disabled students?
If a student has a disability, of any kind, that prevents him or her reading or otherwise having access to a copyright work, an accessible copy may be made and supplied to that student. An accessible copy may be in any suitable alternative format, including digital and audio, enlarged, embossed or coloured, and may include features to assist navigation around the work. An accessible copy may be made and supplied, regardless of any contract terms to the contrary, provided that:
- no copy is commercially available that addresses the particular disabled student's disability
- the library has lawful possession of the original copy from which the accessible copy is made
- the copy is solely for the personal use of a disabled person
- the copy carries a statement that it is a copy of the original work made under licence from the CLA, that it is for the personal use of a disabled person and that it will not be passed to anyone else
- the copy carries the name of the author, the name of the published edition of the work and the name of the publisher
- any changes made to the work are necessary solely for the purpose of making it accessible to the disabled person and do not amount to derogatory treatment of the work.
The library or institution may hold master copies from which to make further copies for the same purpose for other students, provided full records are kept.
4.8 I wrote this article, so can I put a photocopy of it in the library's Short Loan Collection?
Many journal publishers and some book publishers ask or require authors to assign copyright to them for publication. If you have done that, then copyright now belongs to the publisher and your position is no different from anybody else who wants to copy material. If the material falls under the CLA licence, the copy may be made for this purpose.
4.9 May I reproduce this material in an exam question I am setting?
4.10 May I reproduce this material for use in a lecture?
The same fair dealing exception for purposes of illustration for instruction applies to lecturers as to students (see 3.1). It permits use in preparing and delivering lectures, setting work for students and setting questions in an examination paper. Except in the case of an examination paper, this exception permits the making of single copies only. For multiple copies for students see 4.5 and 4.6.
4.11 May I make copies to hand out to people other than students and fellow-staff?
No. You can make multiple copies only for students and staff of the University.
5. Questions applicable to libraries
5.1 What are the rules on copying of published works by Library staff?
A part of any kind of work may be copied by a user, within the same limits as fair dealing (see 1.1).
Where a mediated copying service (i.e. one where the library staff do the actual copying) is provided it is the responsibility of the library to ensure that its copying is lawful. A single copy may be made and supplied, provided that:
- the user makes a declaration in writing (which may be by email) giving his or her name and the name or other description of the work or works to be copied; a statement that the user has not received a copy of the same material before; a statement that the user will use the copy only for purposes of private study or non-commercial research and will not supply the copy to anyone else; and a statement that to the best of the user's knowledge no other person with whom that user works or studies has made or intends to make at about the same time a request for substantially the same material for substantially the same purpose
- the librarian is not aware that the declaration is false
The library may provide a mediated copying service free of charge. If the library wishes to charge, the fee may cover only the costs attributable to the production of the copy: the library may not make a profit from the fee or subsidise other areas of its work. Any contract term that purports to exclude this exception is void.
5.2 What does the CLA licence let me do?
5.3 What are the rules on copying audiovisual materials?
You may make and supply copies of published audiovisual material under the same provisions as for other published works (see 5.1).
Archives, including those in the University, may make and preserve sound recordings of performances of folksongs so long as the words were unpublished, the author of the words is unknown, and the performer does not object. Archives may also make and preserve copies of broadcasts regardless of the terms of any contract.
5.4 What are the rules on copying unpublished materials?
It is important to note some points about unpublished material:
- copyright in literary, dramatic and musical works, and in some anonymous works, of any age, that were unpublished on 1 August 1989 will not expire until 31 December 2039 at the earliest
- the first publisher of a previously unpublished work in which copyright has expired acquires a 'publication right' in it:. This gives the editor who prepares the text for publication a right akin to copyright, which lasts for 25 years.
- it is important to distinguish ownership of the materials (especially in deposited material not owned by the library) and ownership of the copyright in the content. Permission to copy will be needed from both parties.
- there are often special restrictions on the use of unpublished theses; these are not rules embedded in copyright legislation, but must be observed as they are conditions of deposit.
- A part of any kind of work may be copied by a user, within the same limits as fair dealing (see 1.1).
Where a mediated copying service (i.e. one where the library or archive staff do the actual copying) is provided it is the responsibility of the library or archive to ensure that its copying is lawful. A single copy of an entire work may be made and supplied, provided that:
- the work to be copied had not been published on the date when it was deposited in the library or archive; copyright is infringed if the librarian or archivist is aware, or ought to be aware, that it had
- the copyright owner has not prohibited copying of the work; copyright is infringed if the librarian or archivist is aware, or ought to be aware, that copying has been prohibited
- the user makes a declaration in writing (which may be by email) giving his or her name and the name or other description of the work or works to be copied; a statement that the user has not received a copy of the same material before; and a statement that the user will use the copy only for purposes of private study or non-commercial research and will not supply the copy to anyone else
- the librarian or archivist is not aware that the declaration is false
The library or archive may provide a mediated copying service free of charge. If the library or archive wishes to charge, the fee may cover only the costs attributable to the production of the copy.
One less restrictive provision is that a literary, dramatic or musical work held in a library, archive or museum that has never been published, that is at least 100 years old and whose author has been dead for at least 50 years may be copied for a user for commercial research or 'with a view to publication'. It may then be published so long as the publisher does not know the identity of the current copyright owner.
5.5 What are the rules for making preservation copies?
A library, archive or museum may make preservation copies, and make preservation copies of those copies, of works of any kind in the permanent collection that are not available for loan to the public, provided it is not reasonably practicable to purchase a replacement. The copies may be made:
to preserve or replace the original in the same institution's collection
to replace an original in the permanent collection of another library, archive or museum that is not conducted for profit, where that original has been lost, destroyed or damaged
The library, archive or museum may supply preservation copies to other institutions free of charge. If the library, archive or museum wishes to charge, the fee may cover only the costs attributable to the production of the copy.
Any contract term that purports to exclude this exception is void.
6. Questions about orphan works
An orphan work is a work that is in copyright, or that is believed to be in copyright, whose copyright owner is unknown or untraceable even after a diligent search. Note that a work by an unknown author is not necessarily an orphan work, though in some circumstances that anonymity will make it harder to identify or trace the copyright owner.
6.2 What is a diligent search?
It is a search for the rights owner of each individual work whose copyright owner is not known and that it is desired to use. It should be carried out in good faith and it should use all sources of information that are relevant to the work and the proposed use. Brief guidance on those sources is given in the annex to the European directive (available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2012:299:0005:0012:EN:PDF) and more detailed guidance will be issued by the UK Intellectual Property Office. The diligent search should be conducted in the most appropriate country or countries, such as the country of publication, and information about the search should be registered with the IPO so that it can ensure that the EU orphan works database at the Office for Harmonisation of the Intellectual Market (OHIM) is kept up to date and so that rights owners can discover that their works have been identified as orphans.
6.3 What schemes are available for the use of orphan works?
Several countries around the world, such as Canada and Japan, have national schemes. The UK is introducing its own national scheme in October 2014. The EU has agreed a directive on orphan works that will also come into force in the UK in October. Details of the UK and EU schemes are below.
6.4 What does the EU scheme apply to?
The EU scheme provides for an exception to copyright for the non-commercial use of orphan works. It applies only to the following types of organisation established in member states:
- publicly accessible libraries
- educational establishments
- film or audio heritage institutions
- The scheme applies only to the following types of work, including other types of work embedded in them, that are in the collections of the relevant organisations:
- published literary works
- published films, audiovisual works and sound recordings
- unpublished works of the same kinds that have been made available to the public by the relevant organisations where it is reasonable to assume that the rights owner would not object to the planned use.
The scheme also applies to films, audiovisual works and sound recordings produced by public service broadcasters before the end of 2002 and held in their archives.
Note that artistic works are excluded unless they are embedded in another kind of work.
6.5 What does the EU scheme allow me to do?
Once the diligent search has been completed, an organisation listed in 6.4 may do the following things in pursuit of its public interest mission:
- make digital copies of the work
- index and catalogue the work and use the copy for preservation purposes
- make the work available to the public online
Any identified authors and rights owners must be acknowledged. Your use must be registered with the IPO. You may charge for access to the material, but only at a level that recoups the costs involved: you may not make a profit. The diligent search is valid throughout the EU, so others may rely upon it to use the same work.
6.6 How about the UK scheme?
The UK scheme applies within the UK only, so making the orphan works available on the internet is unlikely to be acceptable. It is a licensing scheme not an exception, and it will permit commercial use.
It permits anyone to apply to the IPO for a non-exclusive licence once they have conducted a diligent search for the rights owners. You will have to explain how you plan to use the works, make a declaration about the thoroughness of the diligent search and provide sufficient evidence of the search to satisfy the IPO.
You will then receive a licence that lasts for seven years, which can be renewed if the diligent search is also renewed. A diligent search remains valid for the same term as the licence, and anyone else may benefit from it to apply for a licence for the remainder of the term. Fees will be charged by the IPO, at levels equivalent to what might be charged by a rights owner; however, fees for non-commercial uses by public sector bodies are likely to be very low.
The IPO will maintain a public register of diligent searches and of uses of orphan works, to help other prospective licensees and to assist rights owners to reclaim orphan works.
6.7 What if I find a rights owner or one reappears?
If in the course of a diligent search you identify a rights owner you will need to seek a licence in the normal way. Equally, if there is more than one rights owner of a work you will need licences from those who are known and to do a diligent search for the others. What happens if a rights owner comes forward later depends on the scheme you are using:
under the EU scheme, the rights owner will have to satisfy the body using the orphan work that he is the owner. The two parties will then agree the level of compensation due to the rights owner, which is expected to be low in the light of the non-commercial and public service uses permitted by the scheme. Any further use will be subject to normal licensing.
under the UK scheme, the rights owner will have to satisfy the IPO that he is the owner on the balance of probabilities. The rights owner will then become the licensor but the licence will continue until it expires or until any notice period specified in it expires. After that you will need a licence from the rights owner in the normal way. The rights owner will be paid for the orphan works use out of the fees paid to the IPO.
In both cases, the public register will be updated to show that the rights owner's works are no longer orphans.
Note that this page does not constitute legal advice. Legal advice should be sought from the University's legal department in case of doubt.