Own-it | Intellectual Property Advice for Creative Businesses

Own-it Orphan Works Factsheet

Published 08.08.11 at 13:35

It is a fundamental principle of copyright law that the copyright owner has the right not just to charge money for the use of his work, but also to refuse permission to use it altogether.

It is obviously important to find out whether an image is still in copyright or has fallen into the public domain to know when permission needs to be sought. Failure in this respect will leave you liable for a claim of copyright infringement from the copyright holder.

In order to assess whether a work is still in copyright you need to know whether the author of that work is still alive. This is because copyright usually subsists for the duration of the author's life plus 70 years.

You can usually find out when someone died if you know who they were, but if you don't know who created a work then you have a problem. If a copyright owner is unknown or untraceable then it is impossible to gain consent to use the work.

Works which are in copyright and whose rights holders are unknown or works where the rights holder is known, but cannot be traced or contacted are known as orphan works.

Orphan works are an international phenomenon and pose quite a problem as these works cannot be used by others and cannot be made available to the public while they are in copyright.

The only difference where a work is of unknown authorship i.e. one where "it is not possible for a person to ascertain his identity by reasonable inquiry" is that the duration of the copyright is slightly reduced as the author's life is not taken into account. If the work is of unknown authorship, copyright expires:

• (1) at the end of the period of 70 years from the end of the calendar year in which the work was made; or
• (2) if during that period the work is made available to the public, at the end of the period of 70 years from the end of the calendar year in which it is first so made available.

Best practice would be to search as diligently as possible for the rights holder of a copyright-protected work. If you are still unable to determine who the rights holder is or if you fail to establish contact with the rights holder, the safest option is not to use that work. If you decide to use the work despite better judgement it is very important to keep a good record of your search should the rights holder make contact and claim infringement. The damages you may have to pay may be reduced if you can provide evidence that you have tried to make contact with the rights holder before using the work.

Article by Joe Walsh 

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