EPUK has produced two briefing documents aimed at business and the advertising industry.

The briefings outline liability exposure risks that may result from licensing orphan works through the mechanisms provided by the Digital Economy Bill.

Since there will seldom be any means of determining whether an orphan work is within UK jurisidiction or not, users may obtain licenses in good faith that turn out to be invalid because they relate to work controlled by other legal jurisdictions.

This is a particularly serious risk with orphans that may belong to a US photographer. The US has an aggressive culture of copyright litigation enabled by statutory damages of up to $300,000 for infringement against US Copyright Office registered works. It is not possible to perform any online visible search on the USCO registry, and text descriptions will seldom identify images. No diligent search is able to eliminate this risk.

Model releases, exclusivity agreements, property releases and publicity rights may all give rise to further claims. Companies with US offices will have no luck deflecting US attorneys by waving a UK orphan license. Whether UK Government will indemnify orphan users , or limit ther own liability, is unknown detail awaiting disclosure by the Secretary of State.

The Digital Economy Bill may also undermine the ability of UK professionals to undertake exclusive contracts, since it will never be possible for them to guarantee that the work will not be orphaned and may be licensed to third parties including competitors.

These issues are slightly different for UK businesses and for the advertising industry. Please download and distribute the appropriate briefing to any interested parties.