Serving professional journalism since 1912

Magazine of the Chartered Institute of Journalists

‘Orphan works’ in newspapers and magazines

Why does ‘diligent search’ matter?

Take a good look at the Internet. It’s crowded with electronic versions of newspapers and magazines. Not just facsimiles of current editions, but archives and reproductions of old material still in copyright. Currently the 1914-18 War occupies many Internet pages. Some of this is out of copyright, in some the original publisher can provide proof of copyright ownership, but in many others the copyright may be owned by the original journalist or his or her successors. Perhaps not surprisingly, there are many, many instances where the original journalist cannot be identified or located and these are described as ‘orphan works’.

Why are there so many journalistic orphan works? Quite simply, because, under the 1911 and 1956 Copyright Acts, the first owner of copyright for reproduction in another newspaper or magazine was the publisher, but for all other purposes (including the Internet and other forms of electronic publication) it was the journalist, even if the journalist concerned was a staff member. Under the 1988 Copyright Act, things changed and staff journalists lost this special right. From that time most orphan works have been created by freelances who cannot now be located. In 1911, staff journalists were asked to sign away their special rights, but only the NUJ did so for their members, whilst the then-powerful Institute of Journalists refused to do so.

EU Directive

Until October 2014, it was illegal to publish orphan works at all and the legislation then published, guided by an EU Directive, took a great deal of discussion, consultations and the development of special codes of practice. Nevertheless, it made little impression on the journalistic industry. Newspapers, or their agency the NLA (Newspaper Licensing Agency) had been happily purporting to license orphan works for years, either by self-licensing or through the agency. Apparently they had been donating a small proportion of the fees to a journalistic charity, but that did not make those fees legal.

Under the new regime, any organisation wishing to use orphan works must first carry out a ‘diligent search’ for the copyright holder, then if necessary apply to the Intellectual Property Office for a licence at a fee that the IPO will set. Following a request by the British Copyright Council, I provided a ‘skeleton’ summary (see below) of what would comprise a ‘diligent search’ in the case of written journalistic material. A really diligent search (as is required by the legislation) might turn up some well-earned and much-needed additional income for aged (and younger) ex-journalists, as well as their heirs and successors. At our last check, though there had been an impressive number of applications to IPO for the use of many kinds of orphan works, the number concerning journalistic material was zero.

Diligent search

The following table relates to written material originally published in a serial publication (newspaper or magazine with an ISSN number) for reuse other than in a serial publication. Note that freelances may or may not have retained such rights and that, between 1911 and 1989, staff journalists retained all such rights unless assigned to the publisher or otherwise. From 1989 the publisher held the copyright of staff (but not freelance) material without the need for assignation.

Ken Brookes