Whose popcorn is that? Movie company obtains orphan works licence

On 13 February 2019 the Taiwan Intellectual Property Office (TIPO) granted a Taiwanese production company a copyright licence to use the song “Popcorn”, which is of unknown copyright ownership (commonly known as an ‘orphan work’) in its upcoming movie.

According to the approval letter Zhi-Zhu-Zi No 10816001510 issued by TIPO on 13 February 2019, the company can use the track as per the following conditions:

1. Musical Work (Song)
   1. To reproduce and to distribute the musical work in its movie (one version only) for up to 3,000 DVD copies: NTD 2,400 (approximately USD 80)
   2. To publicly broadcast and to publicly transmit the musical work for 10 years: NTD 750 (approximately USD 25) per year for public broadcast; NTD 750 (approximately USD 25) per year for public transmission
2. Audiovisual Work
   1. To reproduce and to distribute the musical work in its movie (one version only) for up to 3,000 DVD copies; and
   2. To publicly broadcast and to publicly transmit the musical work for 10 years.
   3. Fee for the above 2.1 and 2.2: NTD 5,000 (approximately USD 167) in total
3. Territory of license: Taiwan (including Taiwan, Penghu, Kinmen, and Matsu)
4. Type of license: non-exclusive license, without right to sublicense
5. The aforementioned fees for the license shall be deposited in advance.

The copyright licence was granted in accordance with the Development of the Cultural and Creative Industries Law and the Regulations Governing Application for Approval of Licence of Works of Unknown Owner of Copyrights and Royalties for Use Thereof. 

In contrast to works that are already in the public domain, orphan works are still protected by copyright, which means that their unauthorised use may constitute infringement subject to both criminal and civil liabilities. To foster the development of cultural and creative industries, the Development of the Cultural and Creative Industries Law was enacted on 3 February 2010. Article 24 allows a copyright user to apply for an orphan works licence if it has made its best efforts but failed to obtain authorisation from the copyright owner as a result of being unable to discover its identity or location.

The first orphan works licence granted by TIPO in the public record was on 28 May 2014. There are less than 20 such cases till now. Although, for content users, fair use defence is a frequently chosen tool to defend an unauthorised use of copyrighted works. Relying on a fair use defence means that the user is exposed to uncertain legal risks. Further, a fair use defence is weak in a commercial use scenario. Given the increasing importance of content in the digital age, the orphan works licence approach is a must-know for practitioners in cultural and creative industries and the entertainment industry, as well as for content users. The applications and approvals made for orphan work licence enable copyright users to confirm the status of a copyrighted material, to establish a social environment with a rich creative culture, and to minimise legal risks, all for a reasonable fee.