A work doesn’t have to be marked with a © to be a copyright work. Copyright originates automatically in any original literary, dramatic, musical or artistic work. Accidentally infringing copyright is therefore easier than you might think! To avoid infringement, you must seek permission from the author of a work before using it. But what happens if you don’t know who the author is?
If the author of a work cannot be found (or one of the authors in the case of a work of multiple authorship), the work is known, rather whimsically, as an ‘orphan work’. Orphan works can be a thorn in the side of all manner of creative professionals, and can be particularly troublesome when attempting to reproduce historical photographs.
However, it is possible to use these works without fear of ending up on the receiving end of a lawsuit with an orphan works license. Orphan works licenses can be obtained from the government on payment of a small fee. If the author does later come to light, they can reclaim the fee you paid from the government. This is intended to encourage creativity and innovation by allowing orphan works to be used in new ways.
No excuse for copyright infringement
To obtain an orphan works license you must perform a ‘diligent search’ to make sure you have made a fair effort to identify the author. This has different implications for different types of works, and the UK Intellectual Property Office publishes checklists that give an idea of what a diligent search is expected to involve.
The downside of the orphan works licensing system is that there is really no excuse for copyright infringement! If in doubt, it is worth consulting an attorney.
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