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How will a no-deal Brexit affect Library collections?

Submitted by Ruiha Smalley on 13 September 2019

The Government has recently published advice on how copyright laws will change in the event of a no-deal Brexit. Click here:

The library will certainly be affected by changes to the management of 'orphan work' images. See the paragraph below for details. If this comes to pass the Library will create a new policy to apply to those requesting the use of orphan works from within our collection.

Mutual recognition of orphan works

What is the state of the law prior to Brexit?

Orphan works are copyright works where the right holder is unknown or cannot be found. This can include historical letters and photos held by museums or archives. Because orphan works are protected by copyright, they cannot be used freely, even though it may be impossible to obtain the right holder’s permission.

The EU Orphan Works Directive6 provides an exception to copyright infringement that allows cultural heritage institutions (CHIs) – e.g. libraries, museums, or archives – established in the EEA to digitise and make orphan works available online across all EEA Member States without the permission of the right holder. CHIs must register orphan works used under the exception on a database maintained by the EU Intellectual Property Office (EUIPO).

The orphan works exception has been implemented in the UK in Schedule ZA1 of the Copyright, Designs and Patents Act 1988 (CDPA), as amended by the Copyright and Rights in Performances (Certain Permitted Uses of Orphan Works) Regulations 2014.

What is changing?

The Orphan Works Directive will no longer extend to CHIs established in the UK. UK CHIs will not be able to make use of the EU exception and may face claims of copyright infringement if they make orphan works available online in the EEA – including works that they have placed online prior to Brexit.

In the UK, the exception to copyright infringement for orphan works will be repealed. CHIs that wish to digitise and make available online orphan works in their collections will not be able to do so in the UK under an exception to copyright. Works that UK CHIs have previously placed online will need to be removed to avoid potentially infringing the copyright in those works. CHIs that wish to maintain their online collections within the UK may be able to do so via the UK’s separate orphan works licensing scheme7 but will need to limit access to users based in the UK. Further details on the UK’s orphan works licensing scheme are provided below.