Orphan works, mass-digitisation of cultural heritage, and licensing barriers: Lessons from the United Kingdom’s experience

Orphan works - works in copyright whose rights holders are unknown or cannot be traced - present specific and significant challenges to the mass-digitisation of cultural heritage. This article focuses on the legislative history of regulating orphan works and copyright in the United Kingdom (UK), its impact, and the lessons that can be learnt internationally for mass-digitisation. It examines the UK’s two separate regulatory initiatives: an exception aimed at facilitating the digitisation and dissemination of orphan works to foster access to cultural heritage, introduced as a result of a result of EU harmonisation, and repealed when the UK left the EU (Brexit); and a general purpose, domestic licensing scheme, introduced to offer a pay-per-use clearance process for the licensing of individual works, which remains the only current legislative solution.

In this article, we explain the specific challenge of orphan works in the context of mass-digitisation, with specific reference to the digitisation of the Spare Rib magazine by the British Library and compare the two UK regulatory initiatives including their uptake and suitability. Drawing on examples of other international orphan works licensing schemes, the article then discusses the inadequacies of such schemes in satisfying the online dissemination needs of cultural heritage institutions. Finally, it argues that the loss of the exception in the UK post-Brexit disrupts the balance between copyright protection and public access to knowledge. By applying the broader lessons that can be learnt from orphan works licensing schemes, it concludes by reiterating the need for country-specific exceptions to copyright for orphan works, underpinned by cross-border arrangements, to facilitate the mass-digitisation of cultural heritage.