stop confiscation of your property and Human Rights in the UK Enterprise and Regulatory Reform Bill

"Diligent search" a red herring

"The extended licensing provisions will apply to works whose rights-holders are traceable, as well as to orphan works. The Secretary of State may authorize a licensing body to license works for use even in cases where the author is not a member of the body and has not delegated any authority to that body to act as his or her agent.

The extended licensing provisions contain no requirement that the licensing body, or the person obtaining a licence, should carry out a search for holders/owners of rights who are not members of the licensing body. This is in distinction to the orphan works provisions, under which (in theory) no use may be made of a work until a diligent search for the rights-holders has been conducted."
- Action on Authors Rights

There is a lot of assertion by Labour MPs of the requirement for a “diligent search” to be carried out before an orphan work can be licensed, and the “substantial financial penalties” to be meted out to those proven to have failed to search diligently. Here’s an example,
written by David Lammy’s Intellectual Property Office and regurgitated by Michael Wills in reply to a letter from a constituent:

“it is not the case that the legislation says that ‘if someone finds your photograph, wants to use it and decides that they can't trace you, they can do whatever they like with it after paying an arbitrary fee’, as the website claims. Anyone wishing to use an image will have to conduct a diligent search for the owner of the right, and failure to do so would result in revocation of permissions and liability for substantial financial penalties.”

Except that they don’t, and won’t. In the Bill is currently drafted:

• There is no provision that demands that the licensing society and the potential user must both carry out diligent searches, or even that either of them must: the only requirement is that they reasonably believe that someone has.
• There is no statement at all in the Bill as to what happens should the author come forward, except that he/she gets paid - something.
• Furthermore, under subclause 116D(7) the Secretary of State can waive the requirement for a diligent search, and even the requirement that if the author is found, the work must be removed from the orphan works register(s) - seriously, that is really what it says.

So all you have to do is to say “There’s been a diligent search, I’m sure there has”; to which the licensing society can reply “We believe you. Here’s a license. That’ll be a quid - the rate you’d have paid on a microstock site. Now run off and do with it what you will.”

The devil, as always, is in the details.

The “Market Rate” Myth