1709 Blog: for all the copyright community

Monday, 31 May 2010

Clearance: the IPO speaks

The most recent issue of the UK's Intellectual Property Office e-mag Insight carries a short feature entitled "How do I locate a copyright owner if I want to use the work?" Titles like this are always likely to be a hostage to fortune. The article reads:
"If you want to use someone else's material which is still protected by copyright, and if there is no exception to copyright which covers the situation, you need to seek the permission of the right holder.

You may therefore need to consider who owns or controls the rights in the material. This person could be:

* the creator of the material or his heirs, or
* the creator's employer, or
* anyone else to whom the rights in the material have been sold, or otherwise transferred or licensed, or
* a collective licensing society which has been asked to collect fees on behalf of the rights holder. [Pretty good. In this miserable economic climate the person in control may also be a liquidator or trustee in bankruptcy, as this note mentions below. Another possibility is the Treasury Solicitor's Bona Vacantia division, the website of which providentially contains information about the abandoned copyright it sells]
You should remember that as copyright is an automatic right, there are no registers that can be checked to locate the creator or right holder in a work. There are though organisations representing copyright owners who may be able to assist you in tracking them down.

The copyright protection for many works will continue for 70 years after the [end of the year in which the] creator or owner of the rights in a work has died. The rights will have transferred to someone else, perhaps through testamentary deposition (a will) or by inheritance. If there was no will, or if the creator of the work has not specified where the rights in the material should go, then the normal rules of inheritance will apply. (These rules are not specific to copyright, and advice should be sought from a legal adviser.)

When a company goes out of business or ceases trading, any copyright it may own continues for the customary copyright duration. The rights will be part of the assets of the company, and may be sold or otherwise dealt with by the company or its liquidator, etc.

If you wish to trace a right holder, there is no official body that can help you directly, but you could try the following:

* Contact the appropriate collecting society (see the above link)
* Contact the creator's publisher, agent, representative etc.
* Carry out internet searches on various search engines.
* Establish any family connection.
* Use the WATCH file, (Writers, Artists and Their Copyright Holders) - a joint project of the University of Reading, in the UK, and the University of Austin, Texas, USA. They hold a list of some right holder contacts for some authors and artists.
Please note that if you are having difficulty locating a right holder, you should keep good records of your efforts. (This will help to show that you have been trying to act in good faith.) If you are unsuccessful in tracing the right holder, and still wish to proceed with your project, you should do so with caution. You may wish to set aside an appropriate fee for the use of the work in a special bank account [I've personally felt that, for small-scale unauthorised acts, this should come to roughly what a decent meal for two at a good restaurant would cost you], and, when you use the work, apply a statement indicating that you have tried to trace the right holder, but have failed to do so, and then invite any legitimate right holder to contact you [one can imagine some scenarios in which this is impractical, impossible or just plain unaesthetic]. You should bear in mind that should the right owner appear, they may consider suing you for infringement of their rights, and in such a case you would want to show the right holder, and perhaps the courts, that you have acted in good faith and have made reasonable efforts to try to track down the right holder".
The 1709 Blog invites readers to offer the IPO their own tips and suggestions for the first revision of the advice on this web page.

1 comment:

Guy said...

For some years I have been advising people to follow my example and include a clause in their Will expressly stating who inherits the tesatator's copyright in any written, artistic or musical works; photographs can suddenly become valuable. Remember the battle over the photos taken, but not used initially, when creating the cover for Sergeant Pepper's Lonely Hearts Club Band. [The photographer's son won against EMI on legal aid!]