Orphan Works

Intellectual property: you are surrounded by it. Every literary or creative work you contribute to (such as a letter, a book, a painting) is your intellectual property and you have legal rights over how your property is distributed and used. The Wellcome Library is full of artistic and literary works that are still in copyright. Anything from a 15th century manuscript (in copyright until 2040), to the most recent medical history textbook (in copyright until 70 years after the author’s death) may be in copyright.

In practice, most pre-20th century in-copyright materials are considered “ophan works” – items where the current copyright owners are impossible to identify, or trace. However orphan work status may also apply to more recently published works. The British Library, for example estimates that 40% of in-copyright works are orphan works.

Designating an item an “orphan work” does not change its legal status (it is by definition in copyright), and there can be risks in reproducing orphan works. Copyright holders may, quite rightly, demand the destruction of any copies of their works, and the payment of compensation for any revenue lost as a result of the reproduction.

The Wellcome Trust supports an open access policy with regard to its digital materials and aims to make as much as possible available freely online, whilst at the same time respecting copyright law. Orphan works are a difficult area that must be handled with care but which en masse provide a valuable contribution to the research community.

Recognising this value, the Wellcome Library undertakes due diligence to establish whether a 20th or 21st century work is indeed an orphan work. Traceable copyright holders are contacted (sources vary depending on type of material) and asked for permission. If no response is received, and no other potential copyright holder can be identified, the item is considered an orphan work, and mounted online. If a copyright holder did, subsequently, come forward and request that the image be removed, the Library would do so (see the Library’s take down policy). The Library also welcomes information visitors may have concerning copyright holders for any material mounted on its website.

In light of the problems around digitising orphan works, several organisations have started to address the matter. Useful developments include guidelines that set out a due diligence process for identifying rights holders, calls for changes to the law, and discussions on the urgent need for a resolution on this issue. Some particularly interesting papers on this topic from a range of UK and EU organisations are listed below:

• Orphan works in the Gowers Review of Intellectual Property
• UK Intellectual Property Office, on the Gowers Review
• European Digital Libraries, due diligence report
• European Digital Libraries High Level Expert Group – Copyright Subgroup
• JISC’s assessment of the orphan work issue
• British Copyright Council response to an IPO paper on orphan works
• British Library on Orphan Works and Digitisation
• Also see Chapter 4 in the government paper “Digital Britain”