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Hargreaves Orphanmyth

Hargreaves Orphanmyth

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Published by Michael Zhang
Orphan myths
Orphan myths

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Published by: Michael Zhang on May 17, 2013
Copyright:Attribution Non-commercial

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05/14/2014

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The Enterprise and Regulatory Reform Act 2013 –Your photos and youMyth - the provisions remove the automatic right to copyright for owners of photos posted onlineFact -
 The powers do not remove copyright for photographs or any other workssubject to copyright.
Myth – anyone can use a photo they have found on the internet as an “orphan”if they cannot find the copyright owner after a searchFact
A licence must be obtained to use a work as an “orphan”. This will require theapplicant to undertake a diligent search, which will then need to be verified by theindependent authorising body which the Government will appoint before a work canbe used.
 Myth – works will have their metadata stripped and be licensed en masse asorphans under the Extended Collective Licensing provisionsFact –
the Orphan Works scheme and Extended Collective Licensing (ECL) areseparate and the orphan works scheme is about licensing of individual works. . The Government will have no power to impose ECL on a sector, and the safeguardsincluded in the scheme mean that ECL is only likely to be an option where there isstrong existing support for collective licensing. Any rights holder who is worriedabout how their work could be used under an ECL scheme will always retain theability to opt out.It is unlikely that ECL will be an option for photography where there is a strongtradition of direct licensing: there is no collecting society for photographers in the UK,so no application for an ECL is feasible at present.
Myth – anyone will be able to use my photos for free if they cannot find whoowns them?Fact –
If a work is licensed following the verification of the diligent search, there willbe a licence fee payable up-front for its use. The fee will be set at the going rate.
 
Myth – anyone can use my photos without my permissionFact –
Anyone wishing to use a work as an orphan must first undertake a diligentsearch for the rights-holder which is then verified with permission to use the workgranted by the Government appointed independent authorising body. If the work isnot genuinely orphan then the rights-holder should be found, if the search is notproperly diligent, no licence will be issued.
Myth – the Act is the Instagram ActFact –
Given the steps that must be taken before an orphan work can be copied,such as the diligent search, verification of the search and payment of a going ratefee, it is unlikely that the scheme will be attractive in circumstances where asubstitute photograph is available. The rate payable for an orphan work will notundercut non-orphans.
Myth – a company can take my work and then sub-license it without myknowledge, approval or any paymentFact –
 The licences to use an orphan work will not allow sub-licensing.
Myth - the stripping of metadata creates an orphan workFact –
the absence or removal of metadata does not in itself make a work “orphan”or allow its use under the orphan works scheme
Myth – I will have to register my photos to claim copyrightFact
Copyright will continue to be automatic and there is no need to register awork in order for it to enjoy copyright protection.
Myth – the UK is doing something radical and unprecedented with the OrphanWorks powersFact
- Other jurisdictions already allow the use of orphan works. The UK powers arelargely based on what happens in Canada – which has been licensing orphan workssince 1990.

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