Earlier this week the Government announced new measures to update the UK’s copyright licensing system. The most eye-catching measure proposed for inclusion in the Enterprise and Regulatory Reform Bill (to be published later this week) will allow the creation of a future “orphan works” scheme to open access to material which cannot currently be licensed or used.
“The measures we plan to introduce,” remarked Business Minister Norman Lamb, “ would make it easier for those seeking access to, and use of, copyrighted works. Freeing up so-called ‘orphan-works’ will allow use of works for the first time, making the most of untapped economic and creative potential.”
Other analysts, however, have been more critical of the proposal, pointing out that it has come about as a result of ardent lobbying by large corporate users of copyright works keen to lower their costs. The result, critics say, will be photographers, illustrators and authors losing their digital rights. Indeed, in a piece for The Register earlier this week, Andrew Orlowski characterises the move, which goes further than the EU’s copyright directive in explicitly allowing broad commercial use, as a “compulsory purchase order but without compensation, across an unlimited range of creative works, for commercial use.”
In practical terms the legislation would enable a new agency to apply to become the licensing authority for a given class of work and then licence any work in the class without the permission of the rights holder for a fee “significantly representative of rights holders affected by the scheme.” Under the rules, the licensor would be under no obligation to return revenue gained to the rights holder if it was unable to find them and the burden would be on the rights holder to ensure they could be found (i.e. keep the licensor updated of its rights to the content).
The potential implications of this are worrying. The more onerous the steps required of content-creators to protect their work, the more meagre the incentive to create and share that work. The Government’s desire to liberate effectively authorless (because the authors cannot be found) works for commercial use is perfectly understandable but it must ensure the orphan is not thrown out with the bathwater. If the Government oversteps the mark between freeing up orphan works and eroding the IP rights of the individual, it may find that the flow of content it is trying to commercialise dwindles along with the market it is seeking to boost.
The ICOMP Secretariat