We discuss the impact of the Enterprise and Regulatory Reform Act with the AOI's Derek Brazell and lawyer Iain Stansfield from Olswang.

The Enterprise and Regulatory Reform Act (ERR Act) has received Royal Assent last week. It’s likely to lead to a huge change in how the law sees the licensing of ‘orphan works’ – photos, artworks, music and other digital media that someone wants to licence, but doesn’t know who the copyright belongs to.

Under the new system, a company can license an orphan work as long it makes what the government describes as a ‘diligent search’ to find who the copyright belongs to – and pays a licence fee through one or more private companies that will administrate the process.

Separately, a ‘Digital Copyright Hub’ is being set up to let searches take place – and to allow easier licensing of works from any creatives who wish to use it, including those represented by bodies such as the Association of Illustrators (AOI). Extended Collective Licensing (ECL) will also be introduced, potentially run through organisations such as secondary rights collecting societies who will be required to have the support of their members to run schemes.

The criticisms levelled at the bill from organisations such as the AOI – which is engaged with advising the Intellectual Property Office (IPO) about the project – is that it was rushed through, tacked onto an irrelevant bill, and should have been debated longer.

"Many questions are still being dealt with around this. What should be the time period for unclaimed monies; who gets that money once the period is up. The list goes on."

Derek Brazell, AOI

While a basic structure for how the system would work has been agreed, many are concerned that it could lead to organisations using works after only a minimal search – as ‘diligent’ has yet to be defined – and paying only a minimal fee, and creatives not being aware of what to do if their work is being used in this way

“The proposals will mean that when orphan works schemes are set up, you’ll have to be aware of them and be able to opt out of them if you don’t want your works included,” says Derek Brazell, projects manager at the AOI. “Many questions are still being dealt with around this. What should be the time period for unclaimed monies; who gets that money once the period is up; how do creators prove that they created that work; how are the fee levels set; what would be the procedure should a [creative] object to the use of their work or the fee set for it? The list goes on.”

Another complaint is that the bill was passed before the copyright hub has even been set up – the first is due in July. However, this isn’t an issue, says Iain Stansfield, partner at media specialist law firm Olswang.

“Implementing the Act won’t have any immediate effect, as the relevant provisions don’t come into force until later in the year,” he says. “At that point, the Secretary of State [currently Vince Cable] will be given the power to pass new regulations.

"The Secretary of State isn’t being given blanket powers to pass these regulations, however – they will still have to be approved by both the House of Parliament and the House of Lords before they can come into effect."

Iain Stansfield, Olswang

This is an area creatives are going to have keep a keen eye on – but even if you’re aware of what’s happening, getting properly compensated my not be as able easy as it should be.

“In theory there should be payment if you discover your work has been used without your permission” says Derek, “but there’s no guarantee it’s going to be simple to claim.”

Main photo by photolibrary.com. Photo of Derek Brazell by Matthew Shearer.

Update 1:15pm: Clarification of the the difference between the Digital Copyright Hub and ECL, and amended wording so that the story doesn't imply that the AOI is intending to apply to be a collecting society.