3 May 2012 saw the launch of a paper proposing a partial solution for ‘orphan works’: copyright works whose owners cannot be identified and/or located.
The paper, commissioned by Screenrights and titled The Use of Subject Matter with Missing Owners – Australian Copyright Policy Options, was written by Professor Michael Fraser (Communications Law Centre, University of Technology, Sydney) and Associate Professor David Brennan (University of Melbourne).
Possible solutions to some of the issues arising from orphan works are being considered around the world, including in the United Kingdom and the European Union. There are two main aspects of these considerations:
• how they affect the mass digitisation of the collections of cultural institutions such as libraries and museums; and
• how ‘clearances’ could be made easier for other uses on a case by case basis such as film footage used in a documentary.
There are also two broad ways that solutions have been approached:
• by first considering the purpose for which someone wants to use an orphan work and taking into account the public interest of that purpose in the solution; and
• by only considering whether or not a work is an ‘orphan’; if it is, then it can be used for any purpose.
The paper released last week explicitly excludes any consideration of mass digitisation and recommends that this issue be considered by the Australian Law Reform Commission (ALRC) as part of its inquiry into copyright.
The paper’s proposed solution is for case-by-case use and distinguishes unpublished from published material:
• an exception to allow an individual to use unpublished material for a non-commercial purpose; and
• a broader exception to allow any use of published material by following a process administered by collecting society.
Panellists at the launch talked about how orphan works affected them.
Chris Shain, a professional freelance photographer, talked about his reliance on copyright to make a living and the concerns of his counterparts in the United States and the United Kingdom with proposals for orphan works in those countries. Photographers and illustrators feel particularly vulnerable to orphan works because their works can be less easy to identify than other material, including as a result of identifying metadata being stripped out of digital files as part of the online publication process.
Donna West Brett talked about some of the challenges for the Art Gallery of NSW in clearing rights for images in collection and some mechanisms used by public galleries for sharing information about copyright clearances both in Australia and overseas (such as the WATCH database of writers and artists).
Sally McCausland from SBS, who has been writing and speaking on this issue for a number of years, talked about some of the issues for SBS in releasing archival footage held it, and SBS’s statement on orphan works.
The Australian Digital Alliance was also invited to be part of the panel, but declined.
In the audience was Angelo Loukakis, writer and Executive Director of the Australian Society of Authors. Loukakis is currently involved in a lawsuit in the US against the HathiTrust for its storage and use of books scanned as part of the Google Book Project. He memorably described his work as not orphaned but abducted.
Most proposed solutions for orphan works require a prospective user to make a ‘diligent search’ for the rightsholders and there is much debate about how diligent the search must be. Diligent search for mass digitisation poses practical challenges – where millions of works are involved – and a different approach is probably needed for those projects.
Also under consideration in various places around the world are solutions that allow ‘out of commerce’ works to be used for a range of purposes. The owners of these works can be identified, but they are distinguished from ‘in commerce’ works that are available for purchase. In February 2012, France introduced legislation allowing the use of out of commerce works under a collective licensing scheme.
While orphan works are not specifically included in the draft terms of reference for the ALRC inquiry, there would seem to be scope for consideration of them. Research on orphan works is also being carried out by the University of New South Wales with support from the Copyright Agency Cultural Fund.