‘Not Adopted’: The UK Orphan Works Licensing Scheme and How the Crisis of Copyright in the Cultural Heritage Sector Restricts Access to Digital Content

Abstract

This article is a discussion of how digitizing and disseminating Orphan Works in the GLAM (Galleries, Libraries, Archives, and Museums) sector could have the potential to significantly reframe collections across audiences and institutions in the United Kingdom and across the world. Orphan Works (those works protected by copyright and for which the copyright holder is unable to be identified or, even if identified, cannot be located) make up a significant portion of the material collections of GLAM institutions in the United Kingdom and beyond. Previous research indicates that the mission of the cultural heritage sector to provide access and create opportunities to reuse this vast array of materials is severely affected by a lack of clear copyright legislation. This article addresses two questions: 1) How is current EU Orphan Works legislation affecting the output of digitized content in the UK cultural heritage sector?; and 2) What changes can be made to the implementation of the EU Directive in the UK to better support the mission of cultural heritage institutions, including serving the research and creative communities? To answer these questions, we trace the enactment of EU Directive 2012/28/EU within the United Kingdom through the implementation of the UK Orphan Works Licensing Scheme (OWLS) in October 2014. We then analyze responses to a survey we conducted between December 2015 and February 2016 about the UK Orphan Works Licensing Scheme, and provide additional insights gained from our own use of the Scheme. We conclude that after four years, the UK Orphan Works Licensing Scheme has not fully addressed the long-standing Orphan Works issue for cultural heritage institutions, and that the GLAM sector is dissatisfied with the Scheme’s length of licenses and application fees. Previous research demonstrates that due diligence requirements are the major bottleneck both to mass digitization and dissemination, and we demonstrate that similar barriers remain. Our research indicates that digitization of Orphan Works and their use in the education, research, creative, cultural and commercial sectors across the UK are still stymied. We conclude by recommending that more flexible take-down notices with accompanying take-down procedures – rather than the onerous OWLS individual licensing – would enable GLAMs to digitize and disseminate Orphan Works more efficiently (although the risks to users in building upon this work would have to be clearly signposted). We suggest that updating the framework by which institutions can digitize and disseminate Orphan Works would assist a range of users and industries not only to access, but also to ‘take and make’ material based on or sourced from cultural heritage institutions.