Copyright, Designs and Patents Act 1988

Section 76A

[F1 SCHEDULE ZA1 U.K.CERTAIN PERMITTED USES OF ORPHAN WORKS

PART 1 U.K.GENERAL PROVISIONS

Certain permitted uses of orphan works by relevant bodiesU.K.

1.(1)A relevant body does not infringe the copyright in a relevant work in its collection which is an orphan work by—U.K.

(a)making the orphan work available to the public; or

(b)reproducing the orphan work for the purposes of digitisation, making available, indexing, cataloguing, preservation or restoration.

(2)A relevant body does not infringe the rights conferred by Chapter 2 of Part 2 by doing either of the following in relation to a relevant work in its collection which is an orphan work—

(a)making the orphan work available to the public; or

(b)reproducing the orphan work for the purposes of digitisation, making available, indexing, cataloguing, preservation or restoration.

(3)A relevant body does not commit an offence under section 107 or 198 by using an orphan work in a way which, by virtue of this Schedule, does not infringe copyright or the rights conferred by Chapter 2 of Part 2.

(4)This paragraph is subject to paragraph 6 (further requirements for use of orphan works).

Meaning of “relevant body”, “relevant work” and “rightholder”U.K.

2.(1)In this Schedule “relevant body” means—U.K.

(a)a publicly accessible library, educational establishment or museum,

(b)an archive,

(c)a film or audio heritage institution, or

(d)a public service broadcasting organisation.

(2)Subject to sub-paragraph (4), in this Schedule “relevant work” means a work to which sub-paragraph (3) applies which is—

(a)a work in the form of a book, journal, newspaper, magazine or other writing which is contained in the collection of a publicly accessible library, educational establishment or museum, an archive or a film or audio heritage institution;

(b)a cinematographic or audiovisual work or a sound recording which is contained in the collection of a publicly accessible library, educational establishment or museum, an archive or a film or audio heritage institution; or

(c)a cinematographic or audiovisual work or a sound recording which was commissioned for exclusive exploitation by, or produced by, one or more public service broadcasting organisations on or before 31 December 2002 and is contained in the archives of that organisation or one or more of those organisations.

(3)This sub-paragraph applies to a work if—

(a)it is protected by copyright or rights conferred by Chapter 2 of Part 2, and

(b)the first publication or first broadcast of the work was in a member State.

(4)In this Schedule “relevant work” also includes a work listed in any of paragraphs (a) to (c) of sub-paragraph (2) which—

(a)is protected by copyright or rights conferred by Chapter 2 of Part 2, and

(b)has never been published or broadcast, but

(c)has been made publicly accessible by a relevant body with the consent of the rightholders,

as long as it is reasonable to assume that the rightholders would not oppose the use of the work as mentioned in paragraph 1(1) or (2).

(5)References in this Schedule to a relevant work include—

(a)a work that is embedded or incorporated in, or constitutes an integral part of, a relevant work, and

(b)a performance in relation to which rights are conferred by Chapter 2 of Part 2 and which is embedded or incorporated in, or constitutes an integral part of, a relevant work.

(6)In this Schedule “rightholder” in relation to a relevant work means—

(a)an owner of the copyright in the work,

(b)a licensee under an exclusive licence in relation to the work,

(c)a person with rights under Chapter 2 of Part 2 in relation to a performance recorded by the work, or

(d)a licensee under an exclusive licence in relation to those rights.

(7)In the application of sub-paragraph (6) to a performance by virtue of sub-paragraph (5), the reference in sub-paragraph (6)(c) to a performance recorded by the work is to be read as a reference to the performance.

(8)In this paragraph “public service broadcasting organisation” includes a public service broadcaster within the meaning of section 264 of the Communications Act 2003.

Meaning of “orphan work”U.K.

3.(1)For the purposes of this Schedule a relevant work is an orphan work if—U.K.

(a)there is a single rightholder in the work and the rightholder has not been identified or located, or

(b)there is more than one rightholder in the work and none of the rightholders has been identified or located,

despite a diligent search for the rightholder or rightholders having been carried out and recorded in accordance with paragraph 5.

(2)Subject as follows, a relevant work with more than one rightholder is also an orphan work for the purposes of this Schedule if—

(a)one or more of the rightholders has been identified or located, and

(b)one or more of the rightholders has not been identified or located despite a diligent search for the rightholder or rightholders having been carried out and recorded in accordance with paragraph 5.

Mutual recognition of orphan work statusU.K.

4.U.K. A relevant work which is designated as an orphan work in another member   State is an orphan work for the purposes of this Schedule.

Diligent searchesU.K.

5.(1)For the purposes of establishing whether a relevant work is an orphan work, a relevant body must ensure that a diligent search is carried out in good faith in respect of the work by consulting the appropriate sources for the category of work in question.U.K.

(2)The relevant body must carry out the diligent search prior to the use of the relevant work.

(3)The sources that are appropriate for each category of relevant work must as a minimum include—

(a)the relevant databases maintained by the Office for Harmonization in the Internal Market; and

(b)where there is no record that the relevant work is an orphan work in the databases referred to in paragraph (a), the relevant sources listed in Part 2 of this Schedule for that category.

(4)The Comptroller-General of Patents, Designs and Trade Marks may issue guidance on the appropriate sources to be consulted under this paragraph for any particular category of work.

(5)Subject to sub-paragraphs (6) to (8), a search of the sources mentioned in sub-paragraph (3)(b) must be carried out in the member State in which the relevant work was first published or broadcast.

(6)If the relevant work is a cinematographic or audiovisual work and the producer of the work has his or her headquarters or habitual residence in a member State, the search must be carried out in the member State of the headquarters or habitual residence.

(7)If the relevant work falls within paragraph 2(4), the search must be carried out in the member State where the organisation that made the work publicly accessible with the consent of the rightholders is established.

(8)If there is evidence to suggest that relevant information on rightholders is to be found in other countries, a relevant body carrying out a search in accordance with sub-paragraph (3)(b) must also consult the sources of information available in those other countries.

(9)A relevant body that makes use of orphan works in accordance with this Schedule must maintain records of its diligent searches and must provide the following information to the Office for Harmonization in the Internal Market—

(a)the results of the diligent searches which the relevant body has carried out and which first established that a work is an orphan work;

(b)the use that the relevant body makes of the orphan works;

(c)any change, pursuant to paragraph 7, of the orphan work status of a relevant work that the relevant body has used and in respect of which the relevant body has been supplied with evidence by a rightholder in accordance with paragraph 7(2); and

(d)the contact information for the relevant body.

Further requirements for use of orphan worksU.K.

6.U.K.This Schedule does not prevent the use by a relevant body of an orphan work as mentioned in paragraph 1 from infringing copyright or the rights conferred by Chapter 2 of Part 2 if—

(a)the revenues generated in the course of the use of the orphan work are used otherwise than for the exclusive purpose of covering the costs of the relevant body in digitising orphan works and making them available to the public;

(b)the relevant body uses the orphan work in order to achieve aims which are not related to its public-interest mission (and the aims which are to be treated as related to its public interest mission include, in particular, the preservation of, the restoration of, and the provision of cultural and educational access to, works contained in its collection);

(c)any rightholder who has been identified or located has, in relation to the rightholder’s rights, not authorised the relevant body’s use of the orphan work as mentioned in paragraph 1; or

(d)the relevant body fails, in the course of the permitted use of the orphan work, to acknowledge the name of any author of or other rightholder in the work who has been identified.

End of orphan work statusU.K.

7.(1)This paragraph applies to a rightholder who has not been identified or located in relation to a relevant work.U.K.

(2)A rightholder may put an end to the orphan work status of a relevant work by providing evidence of his or her ownership of the rights to the Office for Harmonization in the Internal Market or to the relevant body which carried out the diligent search which first established that the relevant work is an orphan work.

(3)A relevant body that is using or has used the orphan work must within a reasonable period provide the rightholder with fair compensation for that body’s use of the relevant work together with information on how the fair compensation has been calculated.

(4)If a relevant body and the rightholder cannot agree on the amount of compensation payable, either of them may apply to the Copyright Tribunal to determine the amount.

PART 2 U.K.SOURCES TO BE SEARCHED DURING DILIGENT SEARCH