Information Technology Reference
In-Depth Information
and if it is reasonable to assume that the copyright has expired. Section
57 of the Copyright, Designs and Patents Act 1988 (CDPA) specifies
that an infringement does not occur where the copyright owner cannot
be located by a reasonable inquiry and when the date of copyright
expiration must be uncertain, or when it is reasonable to assume that
the copyright has expired or that the author died 70 years or more
before the beginning of the calendar year in which the act of copying is
done or the arrangements are made. This provision, however, will not
solve the problem of orphan works, because under present law libraries
and archives may make one copy of an analogue format literary,
dramatic or musical work from their permanent collection,
in the same
format
, in order to preserve it.
In 2005 the UK government commissioned an independent review
of the CDPA to establish whether the Act was still fit for purpose in the
changing economic and increasingly globalized environment of the
digital age. The
Gowers Review of Intellectual Property
(HM Treasury,
2006) suggested proposals on a wide range of policy issues regarding
copyright. To solve the problem of orphan works, the Review
recommended that the government should propose provision for
orphan works to the European Commission by amendment of the
Information Society Directive, and that the UK Patent Office should
issue clear guidance on the parameters of a 'reasonable search' for the
copyright holders of orphan works, in consultation with stakeholders.
Finally, the Review stated that the UK Patent Office should establish a
voluntary register of copyright, either on its own or through
partnerships with database holders.
Current European solutions
The European Commission did not opt for an exception to be
introduced into the Copyright Directive (European Union, 2001), but
chose an interoperable solution, to be obtained by contractual
arrangements. A specially established High Level Expert Group
Copyright Subgroup focused on the development of practical solutions
for digital preservation, out-of-print works and orphan works. This
group has six key principles, one of which is transparency. It said:
'Clarification and transparency in the copyright status of a work is an
essential element in a number of areas including the European Digital
