New orphan works legistlation

[marshlander]

The Copyright and Rights in Performances (Licensing of Orphan Works) Regulations 2014 comes into force soon.
While some guidance on orphan works will be good from clarity I fear that the decision to charge a ' reasonable fee' will be very negative to small history based websites like mine. I am commercial in that I take google advertising to pay my running costs but these leave virtually no profit which means that I cannot afford to pay for the use of images.
I have three questions.
Firstly what do you think the effect will be on existing ' orphan works' in the form of postcards from WW1 where the publsiher is not known which are on my website at present. Will I need to take them down or register them with the new body or will they be legal as they are already online. A similar situation will occur in relation to some books that will have used orphan images.
Secondly have you any idea what the fee will be?
Thirdly on a different tack - like many UK websites I live in the UKand use co.uk suffixes although I do attract a worldwide audience but I host my sites on GoDaddy which is one of the biggest hosts in the USA. I have always assumed that as I am based in the UK I need to comply with the UK copyright law but your recent reply to 3CX on US law and comments about liability fo Californian Law on Facebook made me wonder if I was right in testing my copyright compliance on on UK copyright Law.

[AndyJ]

Hi marshlander,
I'm sorry not to be able to offer much advice on the new orphan work licensing regime. In theory the cost of the licence is supposed to relate to the probable cost of a licence were the copyright owner here in person to negotiate one, but that really isn't much help when it comes to the more obscure works for which the likely market is small.
The best I can offer is the three guides published by the IPO about how to conduct a diligent search with respect to a potential orphan work: Guidance for Applicants
As far as the existing images on your website are concerned, I think that if you have already made a reasonable assessment that they are out of copyright due to their age, then there would be little point in going through the licensing process. Clearly no-one has come forward to challenge your use so far, which might be a fair indication that your assumption is correct.
As for the jurisdiction issue, I think you should assume that the UK courts would be an appropriate forum in which to bring a case of infringement, hence UK law is the one you should follow. The main point about the server being based in the US is that anyone who feels you have infringed their copyright can use the American Digital Millennium Copyright Act (DMCA) take-down procedure to get the image taken down. But that is more about the hosting service avoiding liability for any infringement you may be responsible for. This procedure can often be used, as a cheap alternative to litigation, since the claimant gets the satisfaction of getting something removed, and places the onus on you to challenge the take-down notice. But it doesn't follow that you couldn't still be sued in the UK courts, just because the server was based in the US.

[Nick Cooper]

Andy, when it comes to the First World War-era postcards mentioned by marshlander, would they not be covered by the 1911 Act term of 50 years since creation for photographs, under which they will all have become public domain by 1969? Come to think of it, shouldn't that apply to all pre-1957 Act photographs?

[AndyJ]

Hi Nick,
If the images on marshlander's site are only WW1 postcards, what you say is a reasonable assumption, but I wanted to provide a wider view just in case he also had other stuff, which was either much later, or was not specifically a photograph. For example, an artistic work such as a cartoon (the WW1 equivalent of a McGill maybe?) would be entitled to the full 50 years post mortem protection. Another slightly arcane thing to bear in mind is that if the sender has written something on a postcard (other than the address) then these words will technically form a literary work which falls into a different category as far as calculating the term is concerned.
Unfortunately not all pre 1956 Act photographs can be assumed to be out of copyright. Anything made after 1 August 1939 for instance, would still be in copyright when the 1988 Act came into force, so that the provisions of that Act would apply, especially as regards anonymous works. And anything created after 31 December 1945 would still be in copyright when the Duration of Copyright Regulations 1995 (SI 1995/3297) came into force, extending the copyright term to 70 years post mortem. These Regulations also had the effect of reviving copyright in certain works which had previously been published elsewhere within the European Economic Area and were still protected in the other country as at 1 July 1995. At that time the term of protection in Spain was 80 years post mortem, for example, and France had special rules (link in french) which extended the copyright term for authors whose works were published before or during each of the two World Wars. Another special case is where the photograph is covered by Crown copyright.

[Nick Cooper]

Yes, granted there will be issues with non-photographs, but as regards photographs Schedule 1 of the 1988 Act states:

Duration of copyright in existing works

12.—
(1) The following provisions have effect with respect to the duration of copyright in existing works.
The question which provision applies to a work shall be determined by reference to the facts immediately before commencement; and expressions used in this paragraph which were defined for the purposes of the 1956 Act have the same meaning as in that Act.The following provisions have effect with respect to the duration of copyright in existing works. The question which provision applies to a work shall be determined by reference to the facts immediately before commencement; and expressions used in this paragraph which were defined for the purposes of the 1956 Act have the same meaning as in that Act.
(2) Copyright in the following descriptions of work continues to subsist until the date on which it would have expired under the 1956 Act—
....
(c) published photographs and photographs taken before 1st June 1957;

And going back to the 1956 Act the Seventh Schedule (Part 1) states:

Duration of copyright
2. In relation to any photograph taken before the commencement of section 3, subsection (4) of that section shall not apply, but subject to subsection (3) of that section, copyright subsisting in the photograph by virtue of that section shall continue to subsist until the end of the period of fifty years from the end of the calendar year in which it the photograph was taken, and shall then expire.

Subsection (3) of the 1956 Act deals with published works, so surely it follows that photographs published before the commencement of that Act continued to be covered by the terms of the 1911 Act - i.e. fifty years since creation - and that that was subsequently maintained by the 1988 Act? In other words, any photograph published up to and including 31 December 1945 would be public domain on 1 January 1996, and thus not covered by the 1995 Regulations.