Little Orphan Anomie

OFTEN BIZARRELY, debate continues on what, if anything, should be done to permit copying of copyright works - such as articles and photos - whose copyright owners cannot be found: "orphaned works". As reported in the October Freelance, the UK government's Intellectual Property Office has seriously considered two options.

One would be to introduce an "exception" - on the same principle as the rule that organisations of blind people can make Braille copies without asking or paying. This, however, goes against the principle, enshrined not just in EU and international copyright law but also by the World Trade Organization, that such exceptions must not "interfere with the normal exploitation of the work". Anyone, even a library, scanning a book and putting it on the internet would definitely interfere.


Orphan Little Goody Two-Shoes from the 1768 edition of the eponymous book. So we're fairly safe in assuming that the anonymous engraver died more than 70 years ago.

The other would be to apply the principles of Bona Vacantia - the UK legal rules governing the assets of people who die without a will or relatives. The catch: those assets go to the government, and it seems likely that the government would want to keep fees it charged for using orphaned works.

An option not being considered in the UK or elsewhere in Europe, that the Freelance has heard, is that of the US "Shawn Bentley Orphan Works" Bill. This has as we understand it, run out of time. Though passed unread by most Senators, it has not passed the House of Representatives and cannot be carried over to the next Session of Congress, which starts on 3 January.

A proposal has gone to the UK government from some writers' and publishers' organisations calling for (sorry, more jargon) "extended collective licensing". Under this scheme, someone wanting to use a work would have to show to a collecting society (such as the writers' ALCS or the image-makers' DACS) that they had genuinely tried hard to find the author (or other copyright owner). They would be charged a fee proportionate to the normal commercial licence fee for the use they wanted to make of the work. If the author showed up, the fee would go to them. Unclaimed fees would be spent for the benefit of authors in general - for example on welfare, or education campaigns about the value of copyright.

The NUJ has set out its current position in responding to the EU Green Paper on copyright in the knowledge economy, a consultation document that raises the question of orphaned works: read the response via

Besides the above essential principles that users must obtain and pay for a licence in advance, and that fees must be for the benefit of authors, this adds that if anything is to be done about old orphaned works, at the same time something must be done to stop works being orphaned in future.

It would be ridiculous to allow works to be used when their author cannot be identified, while there are authors who do not have the right to be identified. That'd be us, journalists in the UK and Ireland. The right to be identified must be universal, and enforceable. And governments and the EU need to support the development of a system of voluntary, smart databases, to which would-be users can submit not just texts but also thumbnails of photos and snippets of music, and get back an answer: "to use that, you need to ask here".

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