In its final report on Copyright and the Digital Economy, the Australian Law Reform Commission (ALRC) has proposed reforms to the Copyright Act relating to ‘Orphan Works’.
If these changes are introduced, many copyright users will have greater scope and opportunities to use works that have previously been unavailable due to the author being unknown or where the author cannot be located.
Orphan works are copyright material where an owner cannot be identified or located by someone wishing to obtain rights to use the work. Currently, use of orphan works may constitute copyright infringement unless the use is covered by an exception or other defence, such as fair dealing.
The report identifies that orphan works present a significant problem particularly for museums, libraries and for television broadcasters, who are unable to use such material at present without risking an action for infringement, even if in the public interest.
The ALRC recognises that there is public interest in dissemination and use of orphan works, and in allowing a defence to copyright infringement in relation to such use, which would seek to:
- increase the quantities and types of orphan works available for use, and
- promote efficiency and reduce unnecessary burdens on users and public and cultural institutions.
However, the ALRC also recognises that these aims need to be balanced with the rights of rights holders to be adequately compensated, and authors to be attributed.
For those reasons, should there be a claim of copyright infringement following use of an ‘orphan work’, the ALRC recommends that financial remedies that would normally be awarded under the Copyright Act should be limited where it established that at the time of infringement:
- a reasonably diligent search for the copyright owner had been conducted, and
- as far as possible the author had been attributed.
The report notes that many uses of orphaned works (particularly transformative uses) will fall inside the proposed ‘fair use’ exception, in any case.
The report considers a number of options in relation to how remedies would be limited but does not make a firm recommendation. The report suggests that 'a good starting point' for determining the limit would be in the proposals made by US Copyright Office (USCO) in 2006. The limits proposed by the USCO were only for 'reasonable compensation' to be payable in the case of commercial uses and for no relief to be available for non-commercial use. Rather than proposing a rigid definition of what would constitute a 'reasonably diligent search' the report proposes a non-exhaustive list of factors to be considered including:
- the nature of the copyright material,
- how and by whom the search is conducted,
- the technologies, databases and registries available, and
- any relevant guidelines, protocols or industry practices.
The intention of this test is to give flexibility to courts and to allow the requirements of a diligent search to evolve over time as technological advances are made.
ALRC recommends considering a Copyright Register
The report considers and rejects models of centralised or collective licencing which would allow a central body such as a collecting society to issue licences to use orphaned works, even where the copyright owner may not be a member. Instead, the report recommends that further consideration be given to the creation of a centralised copyright registry/exchange to allow owners to register their rights and to act as a marketplace for rights holder (similar to the Digital Copyright Exchange scheme which has been piloted in the United Kingdom).