Guidance

Orphan works licensing scheme appeal guidance

Updated 4 January 2021

Introduction

If you are applying for an orphan works licence (see Orphan works overview) or have contacted the Intellectual Property Office (IPO) as the Orphan works right holder for a work that is the subject of an orphan works application or a licence then you can appeal against the actions and decisions of the IPO in your case.

There are different appeal routes depending on whether you are applying to use an orphan work or are the right holder for an orphan work and these are set out in this guidance.

Appeal to the Intellectual Property Office

Whether you are an applicant or a right holder, you need to appeal the relevant decision through the IPO in the first instance. You will only be able to appeal to either the Copyright Tribunal (for applicants) or the First-tier Tribunal General Regulatory Chamber (for right holders) if you have first appealed to the IPO.

Applicants wishing to use an orphan work

You can appeal to the IPO if you think we have made a mistake

• in refusing your application
• in any condition attached to your licence
• in the licence fee quoted

You should provide full details of the matter you are unhappy with and explain why. Please attach any relevant documentation or emails.

We will acknowledge your appeal on the day we receive it. We aim to reply within 10 working days of receiving your appeal, but if the problem is complex and we need more time, we will tell you.

If you remain unhappy, you can appeal to an IPO Manager who was not involved in the original decision or the appeal response.

We will acknowledge your further appeal on the day we receive it. We aim to reply within 10 working days, but if the problem is complex and we need more time, we will tell you.

Right holders for an orphan work

You can appeal to the IPO if you think that in reaching a decision we have acted improperly or failed to discharge our obligations under the regulations.

You should provide full details of the matter you are unhappy with and explain why. Please attach any relevant documentation or emails.

We will acknowledge your appeal on the day we receive it. We aim to reply within ten working days of receiving your appeal, but if the problem is complex and we need more time, we will tell you.

If you remain unhappy, you can appeal to an IPO Manager who was not involved in the original decision or the appeal response.

We will acknowledge your further appeal on the day we receive it. We aim to reply within 10 working days, but if the problem is complex and we need more time, we will tell you.

Orphan works appeals to the Copyright Tribunal

What is the Copyright Tribunal?

The Copyright Tribunal is an independent tribunal established by the Copyright, Designs and Patents Act 1988.

The main function of the Tribunal is to decide, where the parties cannot agree between themselves, the terms and conditions of licences offered by, or licensing schemes operated by, collective licensing bodies in the copyright and related rights area. It has the statutory task of conclusively establishing the facts of a case and of coming to a decision which is reasonable in the light of those facts.

The Tribunal’s decisions are appealable to the High Court only on points of law. Appeals on a point of law against decisions of the Tribunal in Scotland are to the Court of Session.

Who can appeal to the Copyright Tribunal?

Any person who has either applied for or been granted an orphan works licence.

When can I appeal to the Copyright Tribunal?

Before you can appeal to the Copyright Tribunal, you need to have appealed to the IPO, using its internal appeals process.

Before you can take your appeal to the Copyright Tribunal, you must have:

• appealed in writing to the IPO
• received a written response
• appealed that response to the IPO
• received a written response to this further appeal

How does it work and what can the Copyright Tribunal do?

The Tribunal can reach a decision on the matter before it. The decision of the Tribunal replaces any earlier decisions made on the matter by the IPO.

What issues are outside the scope of the Copyright Tribunal?

The Tribunal can only consider appeals about the refusal to grant a licence, a condition imposed by the IPO in respect of a licence or the licence fee charged by the IPO. In addition, it may consider appeals relating to the EU Directive and a failure to agree fair compensation.

Any other matters are outside the jurisdiction of the Copyright Tribunal.

Will I need legal representation at the Copyright Tribunal?

No, you do not need to be legally represented, but you can choose to be if you wish.

If you do choose to represent yourself, you may find the tips for the Litigant in Person useful, including a glossary of terms and what to expect. This is set out in the Intellectual Property Enterprise Court: a guide to small claims guidance on taking a dispute to the Intellectual Property Enterprise Court (IPEC).

What do I need to do to appeal to the Copyright Tribunal?

Proceedings in the Copyright Tribunal are initiated by serving a notice (see Copyright Tribunal: applications procedure on the Secretary of the Tribunal in accordance with Rule 7 using the form shown in Schedule 1 to the Rules. The notice must be accompanied by a statement of case and fee (GBP £50).

On what grounds can I appeal to the Copyright Tribunal?

There are three grounds of appeal to the Copyright Tribunal:

• the refusal of the IPO to grant you an orphan licence
• any condition imposed by the IPO in connection with the grant of the orphan licence
• the licence fee charged by the IPO

How much will it cost to appeal to the Copyright Tribunal?

£50

What happens once I’ve sent my appeal to the Copyright Tribunal?

The Copyright Tribunal will publish your appeal see Copyright Tribunal: notice of applications and references on its website with a summary of the relevant details.

The respondent will normally have 28 days to provide the Tribunal with its response to the matters set out in your application. The respondent will be the IPO.

How will my appeal be dealt with by the Copyright Tribunal?

The Tribunal will decide whether your application can be dealt with using its small applications track or its standard applications track. Claims under £50,000 where the facts and legal issues are not complex are usually dealt with using its small applications track.

The case will be dealt with at a hearing if either party requests it or the Tribunal considers it appropriate. Otherwise it can be dealt with on paper without the need for a hearing.

What happens after my appeal to the Copyright Tribunal?

The Tribunal will give its decision in writing.

If I win can I claim my costs back through the Copyright Tribunal?

The Copyright Tribunal has discretion to award costs.

Can I appeal against the decision of the Copyright Tribunal?

There is a route of appeal to the High Court, or the Court of Session in Scotland. Appeals can only be made on points of law.

Any appeals must normally be made within 28 days of the date of the decision of the Copyright Tribunal.

Orphan works appeals to the First-tier Tribunal

What is the First-tier Tribunal?

Tribunals are specialist judicial bodies which decide disputes in particular areas of law. Tribunals adopt procedures that are less complicated and more informal than those typically associated with the courts.

Appeals to the First-tier Tribunal (General Regulatory Chamber) are against the decisions from government departments and other public bodies.

There are procedure rules see General Regulatory Chamber tribunal procedure rules on how appeals to the First-tier Tribunal are handled.

Who can appeal to the First-tier Tribunal?

The right of appeal is limited to right holders for works that have been licensed under the orphan works licensing scheme.

This is defined as someone who has identified themselves to the IPO under regulation 12 of the Copyright and Rights in Performances (Licensing of Orphan Works) Regulations 2014 as the right holder for a work that has been licensed as an orphan work.

When can I appeal to the First-tier Tribunal?

Before you can appeal to the First-tier Tribunal, you need to have appealed to the IPO, using its internal appeals process.

Before you can take your appeal to the First-tier Tribunal, you must have:

• appealed in writing to the IPO
• received a written response
• appealed that response to the IPO
• received a written response to this further appeal

If you want to appeal to the First-tier Tribunal, you should do so within 28 days of the date you were sent the final written decision from the IPO on your appeal.

How does it work and what can the First-tier Tribunal do?

The Tribunal can find that the IPO has acted improperly or failed to discharge its obligations under the regulations in reaching a decision. As part of its reasoning, it may identify what “went wrong”. It would then be for the IPO to reconsider the case in light of the Tribunal’s findings.

For example, a right holder appeals to the IPO on the basis that in setting the licence fee the IPO failed to take into account relevant pricing information for non-orphan works and has therefore failed to meet its obligations under the regulations.

The right holder seeks an uplift (increase) in rate for the remaining licence period, and also a lump sum for past difference in rate from the IPO, but the IPO rejects the appeal.

The right holder appeals to the First-tier Tribunal which finds that the IPO has failed to meet its obligations under the regulations in setting the licence fee. The IPO will then reconsider its decision in light of the tribunal’s findings, including whether there should be an uplift in rate for the remaining licence period, and also a lump sum for past difference in rate.

What issues are outside the scope of the First-tier Tribunal?

The Tribunal cannot simply replace the authorising body’s decision with its own. It will be for the authorising body to re-consider their decision or action in light of the tribunal’s findings.

Similarly, the Tribunal has no power to award compensation.

Also, if your complaint is that the authorising body has not recognised you as the right holder to the work then this is not a matter for the First-tier Tribunal, but you would need to consider an appeal to the Intellectual Property Enterprise Court (IPEC).

Will I need legal representation at the First-tier Tribunal?

No, you do not need to be legally represented, but you can choose to be if you wish.

If you do choose to represent yourself, you may find the tips for the Litigant in Person useful, including a glossary of terms and what to expect. This is set out in the guidance Intellectual Property Enterprise Court: a guide to small claims on taking a dispute to the Intellectual Property Enterprise Court (IPEC).

What do I need to do to appeal to the First-tier Tribunal?

You will need to fill in the Form T98: Notice of appeal (General Regulatory Chamber (GRC)) for the First-tier Tribunal (General Regulatory Chamber).

Please explain clearly why you disagree with the decision, giving as much detail as possible. This is an extremely important part of your application and your grounds should show why you consider that the IPO has acted improperly or failed to meet its obligations under the regulations.

You should also explain what result, or decision, you are expecting the tribunal to reach.

On what grounds can I appeal to the First-tier Tribunal?

You can appeal on the grounds that the IPO has acted improperly or failed to meet its obligations under the regulations.

It is not sufficient that you are unhappy with the IPO’s actions or decision; you must be able to explain why the IPO has acted improperly or failed to meet its obligations under the regulations.

Examples of circumstances where the IPO could have acted improperly or failed to meet its obligations under the regulations would include (but are not limited to)

• failure by the IPO to fulfil its obligations to satisfy itself that a reasonable diligent search was carried out; or
• failure to put relevant details of the work on the register of orphan works; or
• failure to take into account what types of licence fees are paid for the similar use of equivalent non-orphan works, when setting the licence fee for the use of an orphan work

How much will it cost to appeal to the First-tier Tribunal?

At present there is no fee to lodge an appeal with the First-tier Tribunal.

What happens once I’ve sent my appeal to the First-tier Tribunal?

As the respondent, the IPO will have 28 days to provide the Tribunal with its response to the matters set out in your application. You will then have the opportunity, within 14 days, to provide a written submission in response to the IPO, if you wish to do so.

How will my appeal be dealt with by the First-tier Tribunal?

Your appeal can either be dealt with on paper, or at a hearing. If you have a preference, please state this in your application to the First-tier Tribunal, although it is ultimately for the Tribunal to decide how the hearing is dealt with.

If the case is dealt with on paper, the Tribunal panel will consider all the papers and then make a decision, which will be sent to the parties in writing in due course.

If the case is dealt with at a hearing, parties will attend a venue on a date fixed by the Tribunal. Witnesses may be called and may be questioned by both the parties and the Tribunal.

What happens after my appeal at the First-tier Tribunal?

At the end of the hearing, the tribunal may be able to give the parties a decision (with written reasons to follow).

However, it is more usual for the tribunal to take more time than this to reach a decision and send it to the parties in writing.

The IPO to abide by any findings the Tribunal may make.

If I win can I claim my costs back through the First-tier Tribunal?

Costs are not normally awarded and usually each party pays their own costs, although the Tribunal can award costs if a party has acted unreasonably in bringing, defending or conducting the proceedings.

Can I appeal against the decision of the First-tier Tribunal?

There is no right to appeal the First-tier Tribunal’s decision, but you can make a written application to the First-tier Tribunal to Form T96: Application for permission to appeal to Upper Tribunal from First-tier Tribunal (General Regulatory Chamber) on a point of law. An application must be made within 28 days of the Tribunal notifying you of the decision.