Orphan Works

I What are Orphan works?

An ‘orphan work’ is a work in which copyright may subsist but for which no copyright owner can be identified or contacted for the purpose of obtaining permission to use the work.[1] The term ‘orphan work’ is not defined by international treaty, or by the Copyright Act 1968, but it is well understood internationally.[2]

There are numerous ways a work may become ‘orphaned’, an owner may not have intended to exercise copyright, it may have been distributed without their permission or ownership may be lost. Certain types of works are particularly susceptible to becoming ‘orphaned’ such as photographs and other images, films and animations. This process is obviously exacerbated as a result of works being distributed over the internet where data can be easily lost or removed.[3]

This raises issues for those who wish to use works as they are unable to get permission from those who cannot be identified or contacted. By continuing without permission and without reliance on a legal exception users open themselves up to significant risk of copyright infringement and subsequent legal action.

II What is the Extent of Orphan Works in Libraries?

The exact number of orphan works that exist in libraries is largely unknown. The National Film and Sound Archive (NFSA) estimates about 20 percent of the national audiovisual collection is orphaned or abandoned and it is limited in terms of its ability to provide access to these works. The NFSA believes that legislative reform is necessary in order for it to fulfil its public interest obligations.[4] The British Library estimates that over 40 percent of all creative works, both in Britain and overseas, are orphan works.[5] In Britain this equates to roughly 25 million works in public institutions.[6]

The problem is a particularly prolific in Australia where a formal system of copyright registration does not exist.[7] This has significant potential to stifle productivity in Australia where the non-availability of orphan works can be a barrier to creativity and productivity.[8] In turn this has a flow on effect to restricting the economic potential of these works which could be significant although their exact potential is largely unknown.[9]

III What are the Current Regulatory Issues Facing Libraries in Australia in Relation to Orphan Works?

Currently there are no general exceptions for using orphan works in Australia. However, to a certain extent provisions in the Copyright Act enable the use of these works in limited circumstances.

Sections 51A, 51B and 110B enables libraries and archives to copy materials, including orphans works, for preservations purposes.[10]

Statutory license provisions exist in Parts VA, VB, VC and VII which allow for the copy and communication of materials for education, government, to assist special persons with disabilities, and for the retransmission of free-to-air broadcasts.[11]

Personal use exceptions exist to allow all copyright works to be used to record radio or television broadcasts to watch at a later time and to allow material to be copied to a different format.[12]

All copyright works, including orphan works, fall under the fair dealing exceptions allowing them to be used for the purpose of research or study, criticism or review, parody or satire, or reporting the news.[13]

Section 200AB exists to “provide a flexible exception to enable copyright material to be used for certain socially useful purposes while remaining consistent with Australia’s obligations under international copyright treaties.”[14] This section facilitates the use of orphan works for specific purposes but many potential uses, such as some surrounding research, creative, broadcast, personal or community purposes, are still restricted.[15] A large amount of uncertainty and lack of precedent surrounds the broad wording of this section deterring cultural organisations from relying on it, including for mass digitisation purposes.[16] As a result of this libraries usually avoid the use of orphan works as on a risk management approach this is the safest option.

IV What are Other Countries Around the World Doing?

The Copyright Board of Canada has jurisdiction to confer ad hoc compulsory licences under the Canadian Copyright Act[17] once ‘the board is satisfied that the applicant has made reasonable efforts to locate the owner of the copyright and that the owner cannot be located’.[18] Royalties are collected and held in a fund for five years after the expiration of the licence for collection by the copyright owner in case they come forward.[19]

In the United Kingdom significant attention has been given to these issues, most recently in a review[20] conducted by Professor Ian Hargreaves in 2011. The review recommended extended collective licensing of orphan works for mass digitisation projects and ad hoc compulsory licensing in cases involving individual works.[21] Extended collective licensing refers to “the deeming, under statute, of complete repertoire coverage by a collecting society who represents a significant number of rights holders.”[22] The Government intends to introduce legislation that enables the use of orphan works after a diligent search confirmed by an independent authorising body.[23]

The European Commission completed a working paper on the issue acknowledging the urgency to boost the development of Europe’s digital libraries and archives but is yet to enact any law.[24] A number of options are considered including: doing nothing, a statutory exception to copyright, extended collective licensing, an orphan-specific licence granted by collecting societies, orphan-specific licence granted by a public body, and the mutual recognition of national solutions regarding orphan works. The Commission aims to ensure that orphan works legislation is adopted in all the Member States, assess whether the system of mutual recognition will provide for pan-European access to digital libraries from anywhere across the EU and assess the extent to which orphan works legislation has contributed to the development of digital libraries.[25]

A report was concluded in 2006 by the United States Copyright Office which recommended that after a ‘good faith, reasonably diligent search’ fails to locate the copyright owner, remedies for ensuing infringement should be confined.[26] The inclusion of an orphan symbol is also suggested to increase transparency.[27] The recommendations of the report have failed to be enacted into law due in part to opposition by photographers.[28]

V What Reform Options are Available for Australia?

A review by the Attorney General’s Department considers many of the options we have already discussed including a full statutory exception, limited statutory exception, Canadian statutory licensing arrangement, extended licensing arrangement, developing copyright infrastructure, clarifying existing provisions in the Copyright Act or a combination of the schemes.[29]

For more information on these proposals see: Attorney General’s Department, Works of untraceable copyright ownership – orphan works: balancing the rights of owners with access to works, 2012 at http://www.ag.gov.au/Consultationsreformsandreviews/Pages/Orphanworks.aspx

A recent paper has been completed in Australia by two academics who put forward three central proposals:

1.      A non-commercial use exception for natural persons using unpublished subject matter derived from lawfully obtained materials.

2.      A broader exception for any use of published material, subject to a user’s compliance with a regime administered by a declared collecting society.

3.      No exception specifically facilitating mass digitisation and reuse of collections until a review, possibly by the ALRC, is conducted about the extent that such projects ought to be facilitated, including through the creation of conditions for more efficient licensing. However such mass digitisation and reuse projects should in any event be able to fully avail themselves of the flexibility created under proposal 2.[30]

For more information on these proposals see: Brennan, David and Michael Fraser, The Use of Subject Matter with Missing Owners – Australian Copyright Policy Options, 2012 at http://www.law.uts.edu.au/comslaw/projects/MissingOwners5.04.12.pdf

The ALRC believes there is a lack of comprehensive empirical evidence about the economic and social effects of orphan works, or the extent to which the inability to access such works impedes creative efforts.[31] It notes the proposals by Brennan and Fraser and currently invites comment on whether the Copyright Act should be amended to create a new exception or to facilitate a collective licensing scheme for the use of orphan works.[32]

VI Conclusion

If we are to consider the global nature of communication it is obvious that Australia must have a scheme that can cooperate with other nations without infringing international agreements. The proposals by Brenna and Fraser appear to be balance user accountability and predictive certainty for users.[33] Whatever scheme is adopted balance must also be found between prospective users and the legitimate interests of copyright owners.

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[1] Attorney General’s Department, Works of untraceable copyright ownership – orphan works: balancing the rights of owners with access to works, 2012, 4.

[2] Ibid.

[3] Australian Copyright Council, Orphan Works, 2012, 1.

[4] National Film and Sound Archive, Statement on Orphan Works, 2010, 3.

[5] Attorney General’s Department, Works of untraceable copyright ownership – orphan works: balancing the rights of owners with access to works, 2012, 6.

[6] Will Gompertz, Shedding light on copyright confusion (13 May 2011) BBC <http://www.bbc.co.uk/news/entertainment-arts-13388167>.

[7] National Film and Sound Archive, Statement on Orphan Works, 2010, p1.

[8] Attorney General’s Department, Works of untraceable copyright ownership – orphan works: balancing the rights of owners with access to works, 2012. 6

[9] Hargreaves, Ian, Digital Opportunity: A review of Intellectual Property and Growth, 2011, 39

[10] Copyright Act 1968 (Cth).

[11] Ibid.

[12] Ibid, ss111, 43C, 47J, 109A, and 110A.

[13] Ibid, ss40-42.

[14] Ibid.

[15] Attorney General’s Department, Works of untraceable copyright ownership – orphan works: balancing the rights of owners with access to works, 2012, 13.

[16] Ibid.

[17] RSC 1985.

[18] Brennan, David and Michael Fraser, The Use of Subject Matter with Missing Owners – Australian Copyright Policy Options, 2012, 3

[19] Australian Law Reform Commission, Copyright and the Digital Economy, Issues Paper No 42, 2012, 157.

[20] Hargreaves, Ian, Digital Opportunity: A review of Intellectual Property and Growth, 2011.

[21] Ibid, 8.

[22] Brennan, David and Michael Fraser, The Use of Subject Matter with Missing Owners – Australian Copyright Policy Options, 2012, 4.

[23] UK Government, Government Policy Statement: Consultation on Modernising Copyright, 2012, 7.

[24] European Commission, Commission Staff Working Paper: Summary of the Impact Assessment on the Cross-Border Online Access to Orphan Works, 2011, 1.

[25] Ibid, 3.

[26] Brennan, David and Michael Fraser, The Use of Subject Matter with Missing Owners – Australian Copyright Policy Options, 2012, 3

[27] Peters, Marybeth, Orphan Works (25 September 2008) United States Copyright Office <http://www.copyright.gov/orphan/>.

[28] Brennan, David and Michael Fraser, The Use of Subject Matter with Missing Owners – Australian Copyright Policy Options, 2012, 4

[29] Attorney General’s Department, Works of untraceable copyright ownership – orphan works: balancing the rights of owners with access to works, 2012, 14.

[30] Brennan, David and Michael Fraser, The Use of Subject Matter with Missing Owners – Australian Copyright Policy Options, 2012, 3.

[31] Australian Law Reform Commission, Copyright and the Digital Economy, Issues Paper No 42, 2012, 151.

[32] Ibid, 165 and 167.

[33] Ibid, 166.