Orphan works, copyright-protected materials whose rights holders are unknown or cannot be traced, pose a major obstacle to the mass digitisation of cultural heritage. Although digitisation offers unprecedented opportunities for access, legal uncertainty often prevents institutions from making collections available online.
This article draws on the PhD research of Naomi Korn at the University of Edinburgh, analysing the impact of Brexit on the management of orphan works and UK Government copyright policy. It also builds on findings published in the Journal of Intellectual Property Rights (JIPR), examining how legislative frameworks shape access to cultural heritage.
In the UK, two different regulatory approaches have addressed orphan works. The first was an EU-derived exception (2014), allowing cultural heritage institutions to digitise and share orphan works for non-commercial purposes following a diligent search. Its strength lay in cross-border recognition, enabling large-scale dissemination.
Alongside this, the UK introduced a domestic Orphan Works Licensing Scheme (OWLS), permitting use of individual orphan works subject to fees and administrative requirements. However, this system operates on a case-by-case basis and is poorly suited to mass digitisation.
The digitisation of Spare Rib, a geminal second-wave feminist magazine, published between 1972 – 1993, illustrates the difference. Using the exception, the British Library made the archive accessible online. Following Brexit and the repeal of the exception, the archive was removed, highlighting how fragile access becomes without enabling legal frameworks.
The UK now relies primarily on licensing, yet such schemes are costly, time-intensive, and do not scale effectively to support mass digitisation of cultural heritage. Diligent searches remain one of the greatest barriers to progress.
Emerging solutions offer a way forward. Initiatives such as the Orphan Works Hub aim to transform rights clearance by streamlining and standardising diligent searches, with the potential to reduce associated costs by over 90%. This creates a realistic pathway toward reintroducing a scalable orphan works exception in the UK, supported by cross border arrangement, enabling UK cultural heritage institutions to publish their collections online. It also provides an opportunity for the re-engagement of the UK OWLS to support the domestic use of orphan works.
The key lesson is clear: licensing alone cannot support mass digitisation. Effective policy must combine targeted exceptions with efficient, scalable mechanisms, supported by technological solutions like the Orphan Works Hub. Together, these can unlock vast portions of our shared cultural heritage, else they remain inaccessible in the black hole of digital culture.
Featured Image: (c) Naomi Korn
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Orphan works, works still in copyright but with untraceable rights holders, continue to block access to vast portions of our cultural heritage. For many institutions, the challenge isn’t just legal—it’s practical. The time, cost, and complexity of diligent searches make large-scale digitisation almost impossible.
A recent update from Australia highlights an important international development in orphan works legislation. New copyright legislation has recently passed enabling cultural heritage institutions (CHIs) to publish orphan works online.
Copyright and orphan works
Copyright attaches to a work the moment it's created and lasts until legal expiry, but the relationship between the creator, the work and the copyright can change over time as ownership changes and records can easily become fragmented.
