# The Copyright and Rights in Performances (Licensing of Orphan Works) Regulations 2014

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U.K.

Statutory Instruments

# 2014 No. 2863

Copyright

# The Copyright and Rights in Performances (Licensing of Orphan Works) Regulations 2014

Made

27th October 2014

Coming into force

29th October 2014

A draft of the Regulations has been laid before and approved by each House of Parliament under section 116D(5) and paragraph                           1D(5) of Schedule 2A to the Copyright, Designs and Patents Act 1988 F1.                        

The Secretary of State, in exercise of the powers conferred by sections 116A, 116C and 116D of and paragraphs 1A, 1C and 1D                           of Schedule 2A to that Act, makes the following Regulations:                        

F11988 c.48, **sections 116A**, 116C and 116D were inserted by section 77 of the Enterprise and Regulatory Reform Act 2013 (c.24) and paragraphs 116A, 116C and 116D were inserted into Schedule 2A of the Copyright, Designs and Patents Act 1988 by section                              77(4) and Part 2 of Schedule 22 to the Enterprise and Regulatory Reform Act 2013. Schedule 2A was inserted by S.I. 1996/2967.

## Citation and commencementU.K.

1.  These Regulations may be cited as the Copyright and Rights in Performances (Licensing of Orphan Works) Regulations 2014 and                     shall come into force on 29th October 2014.                  

## InterpretationU.K.

2.  In these Regulations—                  

“the Act” means the Copyright, Designs and Patents Act 1988;                  

“authorising body” means the Comptroller;                  

“Comptroller” means the Comptroller-General of Patents, Designs and Trade Marks;                  

“diligent search” has the meaning set out in regulation 4;                  

“identified right holder” is a right holder of the type referred to in regulation 12(1);

“orphan licence” is a licence authorising the use of an orphan work;

“orphan licensee” means a person who either wishes to be granted or has been granted an orphan licence;                  

“orphan work” has the meaning set out in regulation 3;                  

“relevant work” has the meaning set out in regulation 3;                  

“restricted acts” means the acts in relation to a performance to which sections 182, 182A, 182B, 182C, 182CA, 183 or 184 of the Act F2 apply;                  

“right holder” has the meaning set out in regulation 3.                  

F2Section 182 was substituted by, and sections 182A – 182 C and 182CA inserted by S.I 1996/2967 and amended by S.I. 2003/2498, **S.I**. 2006/18, S.I 2013/1782; section 183 was amended by S.I. 2003/2498.

## Relevant work, right holder and orphan workU.K.

3.—(1) “Relevant work” means a work which is protected by copyright or a performance in respect of which certain acts constitute restricted acts.                  

(2) A reference to a “relevant work” includes a reference to a work or a performance, which itself falls within the definition of “relevant work” and is embedded                     in or incorporated in, or constitutes an integral part of, another relevant work.                  

(3) “Right holder” in relation to a relevant work means—                  

(a)an owner of the copyright in the relevant work;                  

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

(c)a person with rights to permit or prohibit one or more of the restricted acts in relation to a performance recorded by the                        relevant work and, in the case of a performance, which is embedded or incorporated in or constitutes an integral part of another                        relevant work, a person with rights to permit or prohibit one or more of the restricted acts in relation to the performance;                        and                  

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

(4) A relevant work is an orphan work where, after a diligent search made in accordance with regulation 4, one or more of the                     right holders in the relevant work have either not been identified or, if identified, have not been located.                  

(5) Where a relevant work has more than one right holder and, after a diligent search made in accordance with regulation 4, one                     or more of the right holders have either not been identified or, if identified, have not been located, then the relevant work                     is an orphan work to the extent that the rights of those right holders are either not identified or not located.                  

(6) In these Regulations, a reference to an orphan work includes a relevant work in which it is not known whether copyright or                     the right to permit or prohibit the restricted acts subsists, and references to a right holder who has not been identified                     or located are to be read as including references to a supposed right holder.                  

(7) A relevant work ceases to be an orphan work to the extent that a right holder is identified in accordance with regulation                     12.                  

## Diligent searchU.K.

4.—(1) An orphan licensee shall, before applying for an orphan licence, carry out a diligent search or refer to an existing diligent                     search which is valid and, in either case, is appropriate to the orphan work which is the proposed subject matter of the orphan                     licence and relates to the rights in the relevant work which the orphan licensee proposes to use.                  

(2) A diligent search must comprise a reasonable search of the relevant sources to identify and locate the right holders of the                     relevant work.                  

(3) The sources that are relevant for the relevant work must, as a minimum, include—

(a)the relevant register maintained by the authorising body and 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 register or databases referred to in paragraph (a),                        any relevant sources listed for that category of work in Part 2 of Schedule ZA1 to the Act F3.                  

(4) The authorising body may issue guidance on what sources may additionally be relevant in the case of different relevant works.

(5) A diligent search is valid, for the purposes of paragraph (1), for seven years from the earlier of the date—

(a)on which an orphan licence of the orphan work was first granted by the authorising body; or                  

(b)that the record of a diligent search undertaken in respect of a relevant work was first made public by the Office for Harmonization                        in the Internal Market.                  

(6) An orphan licensee shall provide the authorising body with such information concerning—

(a)the diligent search; and                  

(b)the use that the orphan licensee proposes to make of the orphan work,                  

as the authorising body may require in connection with the application for an orphan licence.

(7) The orphan licensee shall, when applying for an orphan licence, provide the authorising body with an application in the form                     required by the authorising body, including in electronic form, and the application shall—                  

(a)demonstrate that a diligent search has been carried out; and                  

(b)contain a declaration in writing by the orphan licensee stating that the information provided in the application is correct.                  

(8) Where an orphan licensee makes a declaration under sub-paragraph (7)(b) that the orphan licensee knows or has reason to believe                     is false and the orphan licensee is granted an orphan licence and carries out any of the acts restricted by copyright or the                     restricted acts, the orphan licensee is liable for infringement of copyright or sections 182, 182A, 182B, 182C, 182CA, 183                     or 184 of the Act as appropriate.                  

(9) The authorising body shall take reasonable steps to ensure that the search relied upon by the orphan licensee satisfies the                     requirements for a diligent search.                  

F3Schedule ZA1 was inserted by S.I. 2014/2861.

## Record and register of orphan worksU.K.

5.—(1) The authorising body shall maintain and update a register which sets out the details of the orphan works in respect of which—                  

(a)a diligent search has been carried out and an application, for the grant of an orphan licence, has been made to and is being                        considered by the authorising body;                  

(b)orphan licences have been granted together with the permitted uses of the relevant works; and                  

(c)orphan licences have been refused.                  

(2) The authorising body shall make the register available to the public by electronic means and free of charge.

## Licensing of orphan worksU.K.

6.—(1) Once the authorising body has received the information set out in regulations 4(6) and (7), it may grant an orphan licence.                  

(2) The authorising body may only grant an orphan licence which—

(a)permits non-exclusive use of an orphan work in the United Kingdom;                  

(b)permits acts restricted by the copyright or sections 182, 182A, 182B, 182C, 182CA, 183 or 184 of the Act in an orphan work                        for a term not exceeding 7 years;                  

(c)prohibits the grant of sub-licences;                  

(d)has effect as if granted by the right holder of the relevant work; and                  

(e)provides that the use of an orphan work does not affect the moral rights of an author under Chapter IV of Part 1 of the Act                        or the moral rights of a performer under Chapter 3 of Part 2 of the Act and treats those moral rights as having been asserted.                  

(3) Subject to the requirements set out in paragraph (2), the authorising body may grant a licence subject to conditions.

(4) An orphan licence may not be granted to a person authorised to grant licences.

(5) The authorising body may refuse to grant a licence—

(a)on the ground that, in its reasonable opinion, a proposed use or adaptation is not appropriate having regard to the circumstances                        of the case, including whether the proposed adaptation constitutes derogatory treatment of the work; or                  

(b)on any other reasonable ground.                  

(6) Subject to the requirements set out in paragraph (2), the authorising body may, during the term of a licence, vary the terms                     of an orphan licence.                  

## Use for incidental purposesU.K.

7.  Any person may, without infringing copyright or sections 182, 182A, 182B, 182C, 182CA, 183 or 184 of the Act, make reasonable                     use of an orphan work for purposes which are incidental to—                  

(a)the application for the grant of an orphan licence; and                  

(b)the processing of the application and the maintenance of the register referred to in regulation 5(1).                  

## Renewal of orphan licenceU.K.

8.—(1) Upon the request of the orphan licensee, submitted in the form required not less than six months before the expiration of                     the orphan licence, the authorising body may renew an orphan licence for a further term not exceeding 7 years.                  

(2) A request for a renewal of an orphan licence shall be accompanied by evidence of a diligent search carried out in accordance                     with regulation 4 together with the information set out in regulations 4(6) and (7).                  

## Processing feeU.K.

9.  The authorising body may charge a reasonable fee for processing an application for an orphan licence or to vary or renew an                     existing orphan licence.                  

## Licence fee for an orphan licenceU.K.

10.—(1) Subject to paragraph (2), on the grant of an orphan licence the authorising body—                  

(a)shall charge the orphan licensee a reasonable licence fee for the period of the licence calculated with regard to relevant                        factors which shall include the level of licence fees which are achieved under licences for a similar use of similar relevant                        works which are not orphan works; and                  

(b)may charge a reasonable additional amount in respect of the costs of the authorising body.                  

(2) The authorising body shall—

(a)hold all licence fees paid under this regulation in a designated account;                  

(b)adopt accounting procedures that ring-fence in a separate account for monies received from orphan licences; and                  

(c)retain unclaimed licence fees for a period of not less than eight years from the date of the grant of the relevant orphan                        licence.                  

(3) The authorising body shall maintain and make available information that sets out, in respect of the orphan licences it grants,                     how the licence fee is calculated.                  

## Reporting requirementsU.K.

11.—(1) The authorising body shall publish an annual report on the operation of the orphan works scheme and the orphan licences that                     it has granted.                  

(2) The authorising body shall provide the Secretary of State with a copy of the annual report upon its publication.

## Rights of identified right holderU.K.

12.—(1) This regulation applies where the right holder in an orphan work identifies themselves to the authorising body and satisfies                     the authorising body of their identity and of their ownership of relevant rights in the orphan work either—                  

(a)in the period between the receipt by the authorising body of an application for the grant of an orphan licence and the grant                        by the authorising body of that licence; or                  

(b)within eight years or less of the date on which the authorising body has granted an orphan licence of the orphan work.                  

(2) If the authorising body has verified the diligent search but has not granted an orphan licence then the work shall, to the                     extent of the rights of the identified right holder, cease to be an orphan work.                  

(3) If the authorising body has granted an orphan licence then the orphan licence shall continue for the remainder of its unexpired                     term or until the expiration of the notice period which is set out in the orphan licence notwithstanding the fact that the                     right holder is identified.                  

(4) The authorising body shall within two months of being satisfied that the right holder has been identified—

(a)notify the orphan licensee that the right holder has been identified;                  

(b)pay to the right holder a sum equal to the licence fee paid by the orphan licensee in respect of the orphan work.                  

## Unclaimed licence fees of orphan worksU.K.

13.—(1) Where more than 8 years have elapsed since the grant of an orphan licence and no right holder in the orphan work has identified                     themselves, the authorising body shall apply the licence fee, received by it in respect of that orphan licence, to pay the                     reasonable costs which the authorising body has incurred in connection with the orphan works scheme, including the setting                     up and running of the scheme.                  

(2) To the extent that the licence fees referred to in paragraph (1) constitute a surplus over the reasonable costs of the authorising                     body, the authorising body may apply the surplus to fund social, cultural and educational activities.                  

(3) If a right holder in an orphan work identifies themselves to the authorising body more than eight years after the grant of                     the orphan licence and satisfies the authorising body of their identity and of their ownership of relevant rights in the orphan                     work, the authorising body may make such payment to the right holder as the body considers reasonable in all the circumstances                     of the case.                  

## AppealsU.K.

14.—(1) A right holder who has identified themselves to the authorising body under regulation 12, may appeal to the First-tier Tribunal                     on the grounds that the authorising body has either acted improperly or failed to comply with its obligations under these                     Regulations.                  

(2) An orphan licensee may appeal to the Copyright Tribunal concerning—

(a)the refusal by the authorising body to grant an orphan licence to the orphan licensee;                  

(b)any condition imposed by the authorising body in connection with the grant of the orphan licence; or                  

(c)any amount described in regulation 10(1) which the authorising body requires it to pay.                  

(3) On an application under paragraph (2) the Copyright Tribunal shall consider the matter and may make such order as it considers                     to be reasonable in the circumstances.                  

Baroness Neville Rolfe

 Parliamentary Under Secretary for Business, Innovation and Skills

 Department for Business, Innovation and Skills

27th October 2014

## Explanatory Note

(This note is not part of the Regulations)

The Regulations appoint the Comptroller-General of Patents, Designs and Trade Marks as the authorising body with the power                        to grant licences of orphan works in respect of which a diligent search has been carried out in accordance with the requirements                        of regulation 4.                     

“Relevant work”, “right holder” and “orphan work” are defined in regulation 3.                     

Regulation 4 provides that a diligent search requires a reasonable search of the relevant sources to identify the right holder                        of the relevant work and provides that the relevant sources must, as a minimum, include the register maintained by the authorising                        body, any relevant databases maintained by the Office for Harmonization in the Internal Market and, where there is no record                        of the relevant work on the register or in the databases, any sources listed for that category of work in Part 2 of Schedule                        ZA1 to the Copyright, Designs and Patents Act 1988. The authorising body has the power to issue guidance on what sources may                        additionally be relevant for a particular relevant work.                     

An orphan licensee may make use of an appropriate diligent search that has already been carried out if the search is valid                        or may carry out a new diligent search.                     

Regulation 5 requires the authorising body to maintain a register of orphan works.

Regulation 6(2) sets out the restrictions which apply to an orphan licence and regulation 6(5) sets out the circumstances                        in which an authorising body may refuse to grant an orphan licence.                     

Regulation 7 permits any person to make reasonable use of an orphan work for purposes which are incidental to the application                        for an orphan licence, the processing of an application or the maintenance of the orphan works register.                     

Regulation 8 sets out the circumstances in which the authorising body may renew an orphan licence and regulation 10 provides                        a framework for the computation of the licence fee.                     

Regulation 11 requires the authorising body to publish an annual report.

Regulation 12 sets out the rights of an identified right holder and regulation 13 sets out how the authorising body is to                        deal with unclaimed licence fees.                     

Regulation 14 sets out the circumstances in which an identified right holder or an orphan licensee may appeal to the First-tier                        Tribunal or to the Copyright Tribunal.                     

A full impact assessment of the effect that this instrument will have on the costs of business and the voluntary sector is                        available from the Intellectual Property Office, Concept House, Cardiff Road, Newport NP10 8QQ and is annexed to the Explanatory                        Memorandum which is available alongside the instrument on www.legislation.gov.uk . Copies have also been placed in the libraries                        of both Houses of Parliament.