Scope of the orphan works problem

12.5 Orphan works are copyright material where an owner cannot be identified or located by someone wishing to obtain rights to use the work.[1] Use of orphan works may constitute copyright infringement unless the use is covered by an exception or other defence, such as fair use.

12.6 While orphan works are normally associated with older ‘analog’ works, the problem also arises in the digital environment where works are often placed online without identifying rights information. The ALRC heard that photographs are susceptible to being ‘orphaned’ due to rights information being removed when placed online.[2]

12.7 Submissions received from the galleries, libraries, archives and museum sector emphasised the scale of the orphan works problem. For example, the National Library Australia (NLA) estimated that it has some 2,041,720 unpublished items in its collection, a significant number of which are orphan[ed] works.[3] The result of a survey of members of the Australian Digital Alliance and the Australian Libraries Copyright Committee (ADA and ALCC) indicated that library collections comprise between 10% and 70% unpublished orphan works.[4]

12.8 A number of museums also indicated that a substantial number of orphan works reside in their collections.[5] The Council of Australian Museum Directors (CAMD) noted that orphan works ‘in some collections are virtually invisible to the public as well as academic historians and researchers, which fosters significant gaps in knowledge and impedes scholarly research’.[6]

12.9 Public broadcasters—the Australian Broadcasting Corporation (ABC) and the Special Broadcasting Service (SBS)—also drew attention to the problems of using orphan works in derivative works. The ABC noted that it ‘frequently confronts situations in which copyright clearances are required for orphan works, particularly in relation to literary works’.[7] Free TV Australia also observed that broadcasters had problems using archival material such as audio-visual footage or photographs where the owner could not be found.[8]

12.10 Stakeholders suggested that the orphan works problem has been exacerbated by extensions to the term of copyright and by prohibitions on imposing formalities, such as registration of works, in international agreements.[9]

12.11 The inability to use orphan works means that their productive and beneficial uses are lost.[10] The Australian Attorney-General’s Department review of orphan works (the AGD orphan works review) noted that

there are numerous potential benefits of enabling orphan works to be used more readily. For example, these works could contribute to research, education, culture and to the creation of further transformative works. These works could also be used for commercial purposes, thus increasing the already considerable contribution of copyright industries to the Australian economy.[11]

12.12 The AGD orphan works review also pointed out that orphan works affect a wide range of owners and users including: information technology companies, Indigenous creators, news and print media, composers, photographers and web-based creators.[12]

12.13 While the public interest in dissemination and use of orphan works underpins the ALRC’s reform approach in this area, reform must also acknowledge and respect authorship and creation.[13] The ALRC’s proposed reforms are intended to:

  • increase the quantities and types of orphan works available for use;
  • ensure that rights holders are adequately compensated;
  • promote efficiency and reduce unnecessary burdens on users and public and cultural institutions;
  • be cost effective; and
  • be compliant with Australia’s international obligations.[14]

[1] See, United States Copyright Office, Report on Orphan Works (2006), 1. For example, the copyright owner may be deceased, the publisher who owns the copyright may now be defunct, or there is no data that identifies the author of the work.

[2] Copyright Agency/Viscopy, Submission 249; Australian Copyright Council, Submission 219; ALPSP, Submission 199.

[3] The National Library of Australia’s survey of 800 works held in the library, selected to cover a range of dates and creation formats, found that 12.9% had ‘copyright undetermined’ status in its rights management system. The Library’s submission also refers to other examples where: the copyright owner was untraceable; there was no response from the owner; and a work was ‘unorphaned’, bringing the owner and the copyright material together: National Library of Australia, Submission 218.

[4] See ADA and ALCC, Submission 213. The survey did not include published works, and among the types of works that were orphaned, photographs were the most common.

[5] National Gallery of Victoria, Submission 142; Powerhouse Museum, Submission 137; Art Gallery of New South Wales (AGNSW), Submission 111.

[6] CAMD, Submission 236.

[7] Australian Broadcasting Corporation, Submission 210.

[8] Free TV Australia, Submission 270.

[9]Berne Convention for the Protection of Literary and Artistic Works (Paris Act), opened for signature 24 July 1971, [1978] ATS 5 (entered into force on 15 December 1972) art 5. See also Pirate Party Australia, Submission 223; ADA and ALCC, Submission 213; NSW Young Lawyers, Submission 195. As discussed in Ch 12, some stakeholders seek amendments to reduce the term of copyright for unpublished works.

[10] See, eg, United States Copyright Office, Report on Orphan Works (2006), 15. Orphan works are ‘the starkest failure of the copyright system to adapt’ and that the system is ‘locking away millions of works’ in public libraries and archives: I Hargreaves, Digital Opportunity: A Review of Intellectual Property and Growth (2011), 38. Similar comments were made in submissions from Universities Australia, Submission 246; IASTMP, Submission 200; NSW Young Lawyers, Submission 195.

[11] Australian Attorney-General's Department, Works of Untraceable Copyright Ownership—Orphan Works: Balancing the Rights of Owners with Access to Works (2012), 3.

[12] Ibid, Attachment B.

[13] See Ch 2.

[14] These principles are broadly in line with those expressed in the AGD orphan works review.