Summary

13.1 Orphan works are copyright material with no owner that can be identified or located by someone wishing to obtain rights to use the work.[1] This chapter considers reforms that would facilitate the use of orphan works to enable their beneficial uses to be captured in the digital economy, without creating harm to the copyright holder.

13.2 The fair use exception recommended in Chapter 4 may apply to uses of orphan works.

13.3 The ALRC recommends that the Copyright Act be amended to provide that remedies available for copyright infringement be limited where the user has conducted a reasonably diligent search for the copyright holder and, where possible, has attributed the work to the author.

13.4 What constitutes a reasonably diligent search may change as new technologies, databases, registers and services emerge. The Copyright Act should not be prescriptive about what constitutes a reasonably diligent search. Rather, it should provide that a number of factors may be considered in determining whether a reasonably diligent search has been conducted.

13.5 The chapter also discusses options for the establishment of an orphan works or copyright register, but notes that it could be the subject of further consideration by the Australian Government in consultation with stakeholders.

[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.