Copyright: Orphan works

Carry out a diligent search for the right holders

Guide

In order to apply for an orphan works licence, you must complete a diligent search to try to identify and locate the works' right holder or holders.

The aim of the search is to find the right holder who controls the relevant rights in the works you intend to use. If there are multiple right holders, a diligent search will be needed for each right holder where the right is relevant to the proposed use.

Why do you need the search

You will need to submit a report of the search (in .pdf format) with your orphan works licence application, as evidence that you have completed the search. This report must cover:

  • the sources you've checked
  • information on the process you followed in determining if work is orphaned

You will have to carry out the diligent search to the satisfaction of the IPO when you apply for a licence to use orphan works in the UK.

How to undertake diligent search

There is no set procedure to follow for a diligent search - it will depend on the information available. However, you need to show that the search was diligent so it's important to consider multiple sources where possible.

There are several key things you should consider when starting a diligent search:

  • Why do you want to use this particular work?
  • Is there substitute work available for which you know the right holder?
  • Is the work within copyright? If copyright has expired, it can be used freely.
  • Who are the right holders (ie who can permit or prohibit the use of the work)?
  • Are there multiple rights within a work, each with its own right holder?
  • Where did you find the work and what is its provenance?
  • Has the work been published, broadcast or performed?
  • Has a previous diligent search been completed on the work or right holder? Check the orphan works register to see if a previous search exists.

These questions will help you determine where to search for information about the desired work.

If a previous diligent search exists

You can rely on an existing diligent search for the right holder in the work you want to use if:

  • the search was submitted with a previous, successful licence application up to seven years ago
  • the search covers the specific rights within that work you wish to use (since different rights in a work may have different right holders)

If you rely on a previous diligent search, bear in mind that the search is only valid for seven years from when the first licence using that search was issued. So, for example, if a licence was issued two years ago and you rely on the same diligent search, the maximum licence duration will be five years.

Search the orphan works register.

Other sources to search

As well as the orphan works register, there are many other possible sources of information on potential right holders, including:

  • the internet (web searches)
  • online databases and catalogues, such as Amazon, Spotify, etc
  • the Copyright Hub
  • the Writers, Artists and their Copyright Holders (WATCH) database
  • newspaper collections within libraries
  • genealogy sites
  • search archives of higher education institutions
  • treasury solicitors (for assets that may have passed to the Crown by law)

You may also want to:

  • advertise for a possible right holder in relevant media
  • trace heirs to an estate or search for wills or testaments (if a creator is known or believed to be dead)
  • check the provenance of work – credits, acknowledgements, dates or other information embedded in the work

Industry associations, such as those for music industry and film, or databases of relevant Collective Management Organisations can also be great sources of information.

The IPO offers a detailed list of sources to help you complete a diligent search.

Not all sources will be relevant to every search. To help with this process, the IPO has also published:

  • sample diligent searches for some types of work
  • search checklists to show that you have completed a diligent search

The sample searches include narrative to explain why some sources were searched and not others. Find a collection of samples, checklists and guidance on orphan works diligent search.

The IPO can only license for unknown or unlocatable right holders. Where you have located some but not all the right holders, the works are considered partial orphan works. As with any other copyright work, you will need to gain permission from any relevant known and locatable right holder in order to avoid copyright infringement.