The following article is of concern given that the treatment of orphan works is currently a topic of discussion under the ALRC’s inquiry into copyright. A similar extension to the collective licensing scheme in Australia was rejected by cultural institutions at an April roundtable with Inquiry Chair, Prof. Jill McKeogh. (For further details of outcomes from the roundtable see Cultural Institutions and Fair Use). Professor McKeogh advised that the idea of a fee-paying scheme was being advocated in some quarters and encouraged museums and galleries to demonstrate the impact this would have on museums. CAMD will ask members for input on this issue when it prepares its response to the next paper from the review.
Anny Shaw, ‘UK museums must pay for images where copyright is unknown‘, The Art Newspaper online, 24 April 2013
Museums will have to pay upfront for orphan images, or images whose copyright owners cannot be found, after an amendment to the Enterprise and Regulatory Reform Bill to limit proposals was narrowly defeated in the House of Lords. Several members condemned the government’s plans, which require holders of orphan works to pay for copyright licensing on use, rather than when a rights holder steps forward.
“The great cultural institutions of our country hold tens of millions of orphan works in their collections,” said Alan Howarth, Baron Howarth of Newport, a former Labour minister for the arts who proposed the amendment, adding that the National Museums Directors’ Conference estimates there are 50m orphan works in its sector. Paying for each of them in advance “would be an impossible, as well as an inappropriate, burden”, Howarth said during the report stage hearing in March. Merlin Hay, Earl of Erroll, described the measures as a “covert tax”, while Tessa Blackstone, Baroness Blackstone of Stoke Newington, the chairman of the board of the British Library, said the plans were “extremely damaging”.
The defeat is a blow to the museums and heritage sector, which is behind proposals to change copyright laws to allow them to access and digitise the orphan works in their collections.
In a statement, the Department for Business, Innovation and Skills said: “Remuneration should be payable, at the time of use, for orphan works and it should be at a rate appropriate to the type of work and type of use. Not requiring payment of remuneration is unfair to rights holders and, in a commercial environment, it risks under-cutting the market for non-orphan works.”
Exceptions could include public cultural institutions wishing to digitise orphan works embedded in books and journals for limited, non-commercial use, such as on their websites. But museums wishing to use standalone photographs and images will still be required to pay in advance.