Intellectual Property | Enterprise And Regulatory Reform Act Will Have Copyright Implications

The Enterprise and Regulatory Reform Bill received Royal Assent last week, meaning that the Government will be able to introduce controversial copyright reforms.

The Act, sponsored as a Bill by Business Secretary Vince Cable and Lord Marland of the Department for Business, Innovation and Skills (BIS), will allow the use of ‘orphan works’, such as images that lack metadata and whose copyright owners cannot be found.

At the moment, many orphan works languish in storage and cannot be digitised or used without permission until the term of copyright expires but the Act will pave the way for new regulations on such works

This will have huge repercussions for the creative industries, as it will effectively mean that orphan images will be able to be exploited with no legal repercussions.

The Act will allow the Government to set statutory codes of conduct that collecting societies would have to adhere to, although the Intellectual Property Office (IPO) has said that it will only use the “backstop” powers if voluntary rules do no solve concerns about the existing regime.

The photography industry is so concerned about the issue that earlier this year 73 organisations and individuals joined together to warn that the introduction of orphan works provisions and extended collective licensing would reduce the incomes of creators and performers, with the hardest hit being those who trade as individuals, such as illustrators, photographers and performers, as their work is often incorporated into others’ work.

This means that the information that identifies a photographer as a rights holder can often be stripped away and so the ‘diligent search’ an organisation needs to conduct for the owner of an orphan work would not identify them as such.

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Mackrell Turner Garrett Solicitors in London