Thousands of hours of vintage film footage lie fallow in vaults across the UK, legally prohibited from being shown to the public because of arcane copyright rules.

So-called “orphaned” works have uncertain copyright, with the owner either unknown or untraceable. Millions of these “orphans” are stored at considerable expense — in many cases in deep-freeze to prevent deterioration. But anyone showing them currently risks civil and criminal action.

Mark Devereux, the senior partner at Olswang, the London media specialist law firm, and a board member of the UK Film Council, says that it is an infringement of copyright to carry out any of what are known as restricted acts. “That means making something available by showing it in a cinema, broadcasting it or making it available on a download. Any form of commercial exploitation is an infringement, which is a civil matter.”

But he says that it is also a criminal offence to exploit material that is known to be in copyright. Many vintage films have dates and production credits that give a strong indication that a copyright exists, but do not say who the holder is.

If you do attempt to show that work it is “effectively piracy”, he says. “You are in the same bracket as ordinary pirates; you are no different as far as the law is concerned.”

Mr Devereux says the publication last month of the Government’s Digital Britain report provides ministers with the perfect platform to introduce reforms.

The Film Council and the British Screen Advisory Council say that showing orphaned works should be decriminalised — including documentaries, short and full-length feature films — and that a commercial licensing scheme should be created to regulate their distribution and viewing.

But there are questions over whether the will exists in Whitehall to free these works. Three years ago, the Government commissioned Andrew Gowers, the former editor of the Financial Times, to conduct a review of UK intellectual property law. That report referred to the problems with orphaned works, positing some suggestions relating to licensing schemes but not dealing with the question of decriminalisation.

Now, says Mr Devereux, there are concerns that the issue will have slipped well down the Government’s list of legislative priorities, especially considering that it faces a general election in less than a year’s time. In addition, not all specialist lawyers are persuaded that the legislation needs reforming.

Christina Michalos, a media and copyright specialist barrister at 5 Raymond Buildings, says: “Although it may be in the interests of some copyright users to create an exemption for good faith use of orphan works, it couldn’t really be described as a legislative emergency.”

She maintains that currently the copyright of orphaned works often is infringed, and that those breaking the rules do so after assessing the risk— and the risk is often not that high. “The starting point for damages in a copyright infringement case is a notional licence fee,” she says. That means that the penalty for infringement is no greater than the price levied for behaving properly.

“The real problem from a public interest and freedom of expression perspective is not orphan works but rather the length of the copyright term — life of the author, plus 70 years. This locks up all works, including orphan works, for such a long period that it is inevitable that many rights owners will become lost.”

Mr Devereux acknowledges that the risk of legal action might seem low if an orphan is shown, but a copyright owner could still come out of the woodwork once a work is given a public airing. Copyright also can be transferred and there is no requirement to register those transfers in the UK, making some holders even more difficult to track down.

Other specialists agree that the current position is unsatisfactory, but that care must be taken not to erode the position of potentially reclusive copyright holders.

Phil James, a senior associate at the London law firm, Lewis Silkin, says that recent recommendations from the British Copyright Council provide a sensible way forward.

The council, he says, suggests that if an orphaned work is used commercially — for example in a television advertisement — and the copyright holder eventually crops up, “he would be able to claim for the fee that he would have otherwise received had he been identified. It is basically what would have been a reasonable licence fee.”

James Evans, also at Lewis Silkin, says that specialist lawyers do not want to be seen as putting legal bear traps in the path of a public that is simply keen to have access to historic material. “It is an issue that the copyright community wants to address, rather than us being labelled as trying to block the use of content and the sharing of knowledge. It is about taking a reasonable approach to ensure that the copyright holders aren’t prejudiced, that there is due diligence undertaken to identify that a work is genuinely orphaned and categorised as such.

“We need to be careful, because copyright is basically a permissions-based system and, where there are going to be exceptions to the rules, those exceptions have to be tightly defined to make sure that people aren’t disproportionately prejudiced.”

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