Orphan works, copyright, and digital justice: The case of the Spare Rib archive

This paper explores the intersection of copyright exceptions and digital justice, focussing on the post-Brexit removal of the orphan works exception from the UK’s legislative framework. It critically examines the UK Government’s evaluation of the economic impact of this decision, highlighting its failure to consider social and cultural impact, such as the loss of access to the online Spare Rib archive and the resulting barriers to equitable access to cultural heritage.

Orphan works (works in copyright whereby rights holders are unknown or cannot be traced) present substantial impediments to equitable access to culture, and particularly digital access to works by marginalised voices. In 2012, the European Union (EU) adopted the Orphan Works Directive, introducing a new copyright exception to enable certain cultural heritage institutions to digitise and make available orphan works from their collections to promote learning and the dissemination of culture. The Directive created a principle of mutual recognition in the EU for orphan works disseminated under this exception and was transposed into UK law under the Copyright Designs and Patents Act 1988. This empowered UK cultural heritage institutions to showcase important mass-digitised 20th century content, and in 2015, the British Library (BL) launched the Spare Rib digital archive, enabling global public access to this germinal publication. Spare Rib, was a second-wave UK-based feminist magazine (1972-1993) which captured critical issues such as gender inequality, reproductive rights, and systemic oppression. Its digitisation by the BL recognised the significance of its historic, societal and cultural value. However, after Brexit and the repeal of the orphan works exception in 2020, the BL removed its online Spare Rib archive.

Through use of Freedom of Information requests, we investigate the UK Government's decision-making processes behind revoking the orphan works exception. Our findings highlight financial miscalculations in assessing its impact and a disregard for evaluating the intention of the exception in facilitating access to culturally significant works, like Spare Rib. Finally, this paper exposes flaws in the UK's regulatory reform processes, and the need for better evaluation of regulatory changes to foster balanced copyright legislation that supports digital justice while safeguarding creators' rights.