The Challenge of the Unlocatable Copyright Owner

What to do when you stumble across a copyrighted work (eg, a film clip, a lengthy excerpt from a book, a portion of a song, a photograph, etc.) which you want to incorporate into anew work which you are creating (such a film or book or multimedia project)?  Jeremy Phillips, posting at the 1709 Copyright Blog, notes that the UK’s Intellectual Property Office has published its answer to the question: How do I locate a copyright owner if I want to use the work?  The answer provides various bits of advice on how to go about identifying who the owner of copyright is and then actually tracking them down in order to request permission.

All of which is well and good, but what happens when the owner is difficult or impossible to find?  In the UK, the advice of the Intellectual Property Office is as follows:

… 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, 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. 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.

Helpful as far as it goes, but when the advice ends with “well, if you get sued, this might be helpful”, perhaps it leaves something to be desired…

Here in Canada, that answer can be supplemented, as outlined in this helpful brochure published by the Copyright Board of Canada: Unlocatable Copyright Owners.  As the brochure notes, if a person desires to use a published copyrighted work (and the contemplated use does not fall within one of the exceptions to infringement contained in the Copyright Act or does not constitute fair dealing) and they have “made every reasonable effort to find the copyright owner” but been unsuccessful, then under Section 77 of the Copyright Act (Canada), an application can be made to the Copyright Board of Canada for a license.  The brochure contains useful tips on preparing an application for a license.

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Bob Tarantino

About Bob Tarantino

Bob Tarantino is Counsel at Dentons Canada LLP and focuses his practice on the interface between the entertainment industries and intellectual property law, with an emphasis on film and television production, financing, licensing, distribution, and IP acquisition and protection. His clients range from artists and independent producers to Canadian distributors and foreign studios and financiers at every stage of the creative process, from development to delivery and exploitation.

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