Commercial awareness: Copyright law lets down the orphans

The Enterprise and Regulatory Reform Bill has sparked outrage in creative circles.

Beth Williams and  Joshua Myers, trainees, Hogan Lovells
Beth Williams and Joshua Myers, trainees, Hogan Lovells

The Enterprise and Regulatory Reform Bill is set to significantly shake up UK intellectual property law.

The new law reforms the provisions on ‘orphaned works’. Protests have been voiced by copyright holders ranging from professional illustrators to East London hipsters, with the UK media dubbing it the ‘Instagram Act’. But what has changed and why does it matter?

Copyright is an automatic right held by anyone who creates and fixes an original work capable of being protected by the Copyright, Designs and Patent Act 1988, which includes most literary, artistic, dramatic or musical works.

Orphaned works include any pictures, books or other creative content that has an unknown or untraceable author. Previously, their use was not permitted as the requisite copyright holder consent was not possible to obtain.

Some feel this has imposed frustrating limitations on cultural institutions and companies and an EU Directive will be implemented in October 2014 which will allow public institutions to use orphan works. The UK Act pre-empts this and goes further by including commercial use, too.

Essentially, the act allows orphan works to be used without infringing the rights of the unknown author, provided that the user undertakes a diligent search for that author beforehand. The search will then be verified by a government-appointed independent authorising body, after which the user must purchase a licence to use the work.

Comparisons have been drawn with the Instagram terms and conditions controversy of December 2012. Instagram announced it was considering allowing for the display of photos in connection with advertising by third parties but after a backlash from users it clarified its terms and conditions.

However, fears that an individual’s online creative work can be used without permission are understandable. Metadata that connects an online piece of creative content with its copyright holder can be detached all too easily, allowing the content to appear orphaned.

Copyright holders are concerned that licences will be obtainable easily because the act fails to define what constitutes a diligent search. They fear licences granted following lax searches will lead to widespread dissemination of their work, irreparable damage to their creative integrity and disputes that they cannot afford. Advocates of the act believe the changes will produce economic benefits and drive new research and innovation, pointing out that similar legislation in countries such as Canada has not resulted in widespread use of other people’s content.

Ultimately, we must wait for more information on the legislation’s implementation, which is due to be published in the next few months.

However, given the importance of the creative industries to the UK economy, the act’s impact will be scrutinised each step of the way. Either way, the act has valid cultural and commercial objectives, although the misappropriation of copyrighted material might prove to be a very high price to pay.