Guidance on options for making orphan works available online for cultural heritage institutions.
Orphan works are copyright works for which the right holder is not known or cannot be found. Because orphan works are protected by copyright, they cannot be used freely, even though it may be impossible to get the right holder’s permission.
Under the EU Orphan Works Directive, European Economic Area (EEA)-based cultural heritage institutions - eg libraries, archives and museums - can digitise and make orphan works available online across all EEA member states without the permission of the right holder.
Cultural heritage institutions must register orphan works used under the exception on a database maintained by the European Union Intellectual Property Office (EUIPO).
No orphan works exception in the UK
The EU orphan works exception no longer applies to UK-based institutions and was repealed from UK law.
UK institutions may face claims of copyright infringement if they make orphan works available online in the UK or EEA, including works they had placed online before 1 January 2021.
Making Orphan Works Available online
UK cultural heritage institutions who wish to make orphan works available online should consider
- seeking a licence under the UK’s orphan works licensing scheme
- where they have a licence to use the work in the UK, limiting online access to users based in the UK to avoid copyright infringement in the EEA
Cultural heritage institutions may also rely on copyright exceptions to use orphan works where appropriate.
The UK orphan works licensing scheme
The UK’s orphan works licensing scheme allows orphan works to be licensed in the UK for commercial and non-commercial uses, subject to the user paying application and licence fees and completing a diligent search for the right holder.