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No Deal Brexit and Copyright – Part 2: Orphan Works

Towards the end of last year the UK government published draft legislation on copyright, which will come into force if there is a no-deal Brexit. We are publishing a series of blogs on the impact of the Copyright SI. In this blog we look at the impact on orphan works.

Purpose of the Copyright SI

On 26 October 2018, the UK government published a draft version of a statutory instrument (Copyright SI) and explanatory note together with guidance issued by the UK Intellectual Property Office (IPO) which explain the changes which will be made to UK copyright law in the event of a ‘no deal’ Brexit. The purpose of the Copyright SI is to correct any deficiencies in the UK Copyright, Designs and Patents Act 1988 (CDPA) arising as a result of Brexit and to manage the impact of a ‘no deal’ Brexit on any cross-border copyright mechanisms (such as the ‘country of origin’ principle for clearing copyright works in satellite broadcasts). The government’s approach is to preserve the status quo where possible and give continued effect to cross-border mechanisms (even where there is no guarantee of reciprocity from the EU). Unless the UK and the EU reach a deal on these issues (these issues not being covered by the draft Withdrawal Agreement published on 14 November) the Copyright SI will come into force on exit day.

Impact on the Orphan Works regime

The EU Directive on certain permitted uses of orphan works (Directive 2012/28/EU) (the Orphan Works Directive) introduced a specific exception to copyright infringement for certain institutions, including publicly accessible libraries, educational establishments or museums, archives and public service broadcasters (‘cultural heritage institutions’ or CHI’s) to allow them to copy ‘orphan works’ for the purposes of digitisation, restoration, indexing and making them available on their websites. The amendments remove this exception from the CDPA. The effect of this is that UK CHI’s will no longer be able to rely on the orphan works exception to copy orphan works in their collections and make them available online throughout the EEA. However, the UK’s own licensing scheme for the use of orphan works will still apply. Under the UK scheme, any person wishing to use an orphan work can apply to the Controller-General of Patents, Designs and Trade Marks for a licence to copy or use the work in the UK.

Part 1: No Deal Brexit – Copyright and Broadcasting and Online Content Services is available here.

For more information on the UK orphan works scheme contact Alastair Shaw or Penelope Thornton in our IPMT practice. For more information on Brexit and IP and our Brexit taskforce, go to our dedicated Brexit Hub.