More clarity on “normal use” in EU design law
The Court of Justice of the European Union has offered some clarity on what may be deemed ‘normal use’.
The Enterprise and Regulatory Reform Act 2013 is changing copyright law in the UK to enable the widespread commercial exploitation of images where the owner of copyright in an image cannot be identified. Under the Act these images, known as “orphaned works”, will be allowed to go into a collective licensing scheme for non- exclusive use by licensees paying a royalty.
The licensing scheme, which must be implemented by October 2014, will be administered by a government appointed independent authorising body, which will have authority to grant a non-exclusive licence in respect of an orphaned work to a potential licensee who has undertaken a “diligent search” and demonstrated that the copyright owner cannot be traced.
It is not yet clear exactly how the scheme will operate since the details have not yet been finalised, but after verifying that a diligent search has been undertaken it is likely that the authorising body will set licence fees at market rates and hold the royalties collected for the original copyright owner in case they are found. It is also anticipated that there will be registers of works that have been the subject of diligent searches and licenses so that works may be reunited with their authors.
The Act has raised concern for copyright owners of images who fear that it will allow others to use their works if the original author cannot be easily traced or identified. At present there are no precise definitions or parameters for a “diligent search” or how this will be “verified” and the uncertainty is creating particular anxiety for owners of photos and videos that are uploaded onto the internet and then shared on social media sites without any attribution to the creator of the image. If, in the course of these activities the metadata that identifies the author becomes detached from the work then it may become difficult to ascertain the original author of the image. The UK Intellectual Property Office has stated, reassuringly, that just stripping out data from an internet image or video will not make it an orphaned work but as yet we do not have any certainty about how it will all work in practice.
In the light of these concerns, it is a good idea for copyright owners to think about ways of minimising the risk of their images becoming orphaned works. Overprinting images with copyright ownership data, by adding a visible copyright ownership statement, or putting watermarks on images to identify ownership can be helpful and act as a deterrent to copying.
An additional way of adding ownership data to the image is by embedding it into the metadata of the image. As with watermarks, this may get removed in any downstream replication but simply removing the metadata is unlikely to make the image an orphaned work.
A further possibility is to register the individual works with a copyright ownership registry. Unfortunately in the UK there is no official registration system and using private organisations offering a registration service can be expensive and time consuming.
Until more is known about the proposed mechanics of verifying diligent searches and obtaining licences it is difficult to provide comprehensive advice on preventing works becoming orphaned. Hopefully, the new legislation will operate to allow people to use images only where there is genuinely no traceable author, perhaps because they have died, rather than provide a chink in copyright protection for a serious infringer to exploit. In relation to the latter, copyright owners still have the protection provided by the main copyright legislation.
If you believe the change in law could impact your business or if you would like to discuss the changes in more detail, please contact us.