Art law News United Kingdom

UK museums must pay for images where copyright is unknown

Opponents accuse government of implementing unworkable “covert tax”

Baron Howarth of Newport, a former Labour minister for the arts who proposed the orphan works amendment

Museums will have to pay upfront for orphan images, or images whose copyright owners cannot be found, after an amendment to the Enterprise and Regulatory Reform Bill to limit proposals was narrowly defeated in the House of Lords. Several members condemned the government’s plans, which require holders of orphan works to pay for copyright licensing on use, rather than when a rights holder steps forward.

“The great cultural institutions of our country hold tens of millions of orphan works in their collections,” said Alan Howarth, Baron Howarth of Newport, a former Labour minister for the arts who proposed the amendment, adding that the National Museums Directors’ Conference estimates there are 50m orphan works in its sector. Paying for each of them in advance “would be an impossible, as well as an inappropriate, burden”, Howarth said during the report stage hearing in March. Merlin Hay, Earl of Erroll, described the measures as a “covert tax”, while Tessa Blackstone, Baroness Blackstone of Stoke Newington, the chairman of the board of the British Library, said the plans were “extremely damaging”.

The defeat is a blow to the museums and heritage sector, which is behind proposals to change copyright laws to allow them to access and digitise the orphan works in their collections.

In a statement, the Department for Business, Innovation and Skills said: “Remuneration should be payable, at the time of use, for orphan works and it should be at a rate appropriate to the type of work and type of use. Not requiring payment of remuneration is unfair to rights holders and, in a commercial environment, it risks under-cutting the market for non-orphan works.”

Exceptions could include public cultural institutions wishing to digitise orphan works embedded in books and journals for limited, non-commercial use, such as on their websites. But museums wishing to use standalone photographs and images will still be required to pay in advance.

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