The licensing regime for orphan works came into force on 29 October 2014.
The background to this is that there are several things - including reproducing a work - which cannot lawfully be done with a copyright work without the permission of its author. But there are large numbers of copyright works where the author is unknown or cannot be traced – so reproducing such works without permission from the author is fraught with danger.
The new regime implemented by 2014 SI 2863 provides that where a "diligent search" for the author has been made but he cannot be traced, an application for a licence to use the orphaned work can be made to the UK IPO which will grant a licence in exchange for an up-front royalty.
The quantum of the royalty will be set by the IPO and should be "reasonable" for the type of licence sought and for the duration sought. A "reasonable additional amount" may also be added to the licence fee to cover the running costs of the licensing regime. The IPO must publish information on how it calculates the licence fee. Thus a body of licensing data should build up over time which may help to gauge what an approximate fee is likely to be, but the IPO will be influenced by similar licences granted in similar circumstances for similar works.
A work will not become an orphan work unless a "diligent search" has been conducted with, however, negative results. The IPO has published detailed guidance (available on its website) of what a "diligent search" will entail in relation to different types of copyright works, but the research likely to be needed before concluding the work is an orphan work will be substantial.
For a literary work, it will probably include searches in Legal deposits/Library Catalogues (e.g. British Library) and authority files held by libraries and other institutions, checks with publishers and authors' associations (e.g. Society of Authors and others), existing registries and databases (e.g. WATCH and others), checks of the ISBN records, checks of the databases of collecting societies (e.g. Publishers' Licensing Society and others) and checks of other sources, such as literary agents, registries databases etc. Where authors may have written under pseudonyms, relevant reference works will need to be checked (e.g. Dictionary of Literary Pseudonyms in the English Language and others). No doubt a specialist industry to conduct "diligent searches" in relation to copyright works will develop over time, but the time and cost likely to be involved in making a diligent search should not be underestimated.