One of the issues being considered by the Australian Law Reform Commission (ALRC) in its inquiry into copyright and the digital economy is ‘orphan’ works: works for which a rightsholder is not locatable.
The ALRC’s issues paper asks for views about:
- How does the legal treatment of orphan works affect the use, access to and dissemination of copyright works in Australia?
- Should the Copyright Act 1968 (Cth) be amended to create a new exception or collective licensing scheme for use of orphan works? How should such an exception or collective licensing scheme be framed?
The Attorney-General’s Department last week released a paper outlining the outcomes of its review of the issues associated with orphan works. The issue is also under consideration overseas. For example, the European Parliament has recently passed legislation on orphan work (see here) and the United Kingdom has introduced legislation that would enable the licensing of orphan works (see Enterprise and Regulatory Reform Bill here). In addition, the issue was recently canvassed in a paper written by Australian academics Michael Fraser and David Brennan entitled ‘The Use of Subject Matter with Missing Owners’ (here), and is the subject of research by the University of NSW (here). See also, the useful article by Ian McDonald, Some Thoughts on Orphan Works (here).
Most discussions of the issues distinguish:
- case by case uses of orphan works
- mass digitisation by cultural institutions such as libraries, museums and archives
Some of the issues that need to be considered are:
- Is the rationale for a special copyright provision the fact that the rightsholder is unlocatable, or is it the public benefit of the use?
- To what extent (if any) should a special provision enable a person to use an ‘orphan’ work instead of an equally suitable available licensed work?
- When should a ‘diligent search’ for a rightsholder a condition for the special provision to apply?
- Should the use of an orphan work be conditional upon some payment?
If the rationale for a special exception is the public benefit of the use, then it is worth noting that all the myriad exceptions in the Copyright Act apply to orphan works in the same way that they apply to works with locatable rightsholders. A couple of the exceptions require acknowledgement of the work (fair dealing for criticism or review and fair dealing for reporting news), but these allow for unattributed works.
These special exceptions allow for case by case uses and, in some cases, mass digitisation.
Cultural institutions that are part of the Commonwealth or a state government can use any material, including orphan works, for the government purposes. This seems likely to enable mass digitisation for preservation, and making available for viewing by the Australian public. There are also existing provisions that enable cultural institutions to make digitised copies of ‘original’ versions of works (such as manuscripts and paintings) for preservation and, in some cases, out of print works.
Outside of special provisions in the copyright legislation, use of orphan works is often covered by existing licensing arrangements. For example, Copyright Agency’s blanket licences for corporations, not-for-profit associations and quasi-government organisations allow the use of orphan works for the purposes covered by the licences.
So the issue is: what uses not already allowed by exceptions and/or existing licensing arrangements should be allowed by a special provision, and why?
If the rationale is that works without locatable rightsholders should be allowed to be used, the question is whether the same conditions apply for all works and all uses. For example, should the conditions that apply to the use of a photograph in an advertising campaign be the same conditions that apply to the digitisation of a photograph in museum’s collection?
In the UK, representatives of photographers, illustrators and other creators adopted a position on orphan works that distinguishes ‘non-commercial’ uses that could be licensed through special provisions in the copyright legislation, and ‘commercial’ uses that are not covered (see Annex to British Copyright Council proposal on orphan works here).
A major concern for creators such as photographers and illustrators is that if the conditions for use of an orphan work are easy to meet, and particularly if they allow use for commercial purposes, orphan works would be used in preference to available licensed works. The issue, then, is whether there is greater public benefit in supporting the income for freelance creators such as photographers than enabling the use of an orphan work.
Most discussions of solutions for orphan works propose that a ‘diligent search’ for a rightsholder be a pre-condition of using a work without a copyright clearance. While this may be feasible for high value works, where the value of the content is proportionate to the effort required to search, it is not feasible for projects that involve a large number of uses of relatively low value. An alternative for these projects, where there is a public benefit in them, is the collective licensing model: the user is given a blanket licence, and the collecting society uses its best endeavours to identify as many rightsholders as possible.
One of the issues debated in relation to orphan works is whether there should be any payment associated with the use. In the UK, the provisions in the Enterprise and Regulatory Reform Bill would allow the licensing of orphan works for payment. Different approaches have been taken elsewhere, though, such as the orphan works bills introduced (but not passed) in the United States in 2008.
There are three aspects of payments associated with orphan works:
- outsourcing of the search for rightsholders (for example, to a collecting society under a blanket licence arrangement)
- a provision for licence payments to rightsholders who are located
- where the orphan work is a substitute for available licensed works, a licence fee similar to that of the available licensed works, to avoid unfair prejudice to the rightsholders of those works.