A copyright or orphan works register

13.88 Stakeholders suggested that the orphan works problem has been exacerbated by extensions to the term of copyright and by prohibitions on imposing formalities on registration of works in international agreements.[138] The role of registration as an effective method for dealing with copyright issues, including orphan works, has gained some traction in copyright reform.[139]

13.89 Some stakeholders suggested that an orphan works or copyright register would be important to future copyright reform.[140] The Australian Copyright Council suggested that reforms should address the issue of ‘works being orphaned in the first place’.[141] Others emphasised the problems faced by photographers whose works may be orphaned due to metadata being stripped from them.[142] Associate Professor Ariel Katz submitted that orphan works reform should also focus on the ‘supply side’, because copyright owners ‘who do not internalise the full social cost of forgone uses, face suboptimal incentives to maintain themselves locatable’.[143]

13.90 Stakeholders highlighted the benefits of registers in reducing instances of orphan works. The Motion Picture Association of America highlighted the success of the US Copyright Office’s comprehensive register of copyright works and noted:

Indeed, MPAA believes that few commercially released motion pictures could qualify as orphan works, because use of the Copyright Office’s registration and recordation systems has long been routine in the motion picture industry; all major motion pictures are registered with the US Copyright Office, regardless of their country of authorship.[144]

13.91 Similarly, the collecting society APRA/AMCOS noted that orphan works are not a significant issue for owners of musical works, due to its comprehensive database that can be accessed for a small fee.[145]

13.92 The Business Software Alliance urged copyright industries to ‘develop and integrate databases of copyright information to suit the particular types of works and business models’.[146]

13.93 The Music Council of Australia suggested that a number of online systems, platforms and processes could be developed with the assistance of the Australian Government, and that such a system could benefit both users and creators and ‘could enable the licensing of orphan works’.[147]

13.94 Australian copyright academics Professor Michael Fraser and David Court have also suggested that the Australian Government set up a national copyright register. This would allow rights holders to voluntarily register their work and could act as a hub for accessing online content.[148] They suggest that the Australian Government issue a Green Paper and should thereafter run a pilot project that would focus on Australian films.[149] Further, it was suggested that incentives should be provided to rights holders to register their works, including ‘enjoying a rebuttable presumption of ownership of the copyright in that content in legal proceedings, and when seeking injunctions’.[150]

13.95 The Hargreaves Review made similar recommendations for the establishment of a Digital Copyright Exchange (DCE) that would allow users to quickly identify and license works while also giving copyright holders options to license their works.[151] A subsequent feasibility study conducted by Richard Hooper recommended the creation of an industry-led and industry-funded ‘copyright hub’, which would serve not only as a registry of rights, but also a marketplace for licensing copyright material.[152] The report suggested that use of the hub would be an element of a reasonably diligent search.[153] A pilot phase of the hub was launched on 8 July 2013 with connections to 35 websites providing information on copyright or opportunities for licensing.[154]

13.96 Similarly, the Copyright Review Committee (Ireland) recommended that the proposed Copyright Council could ‘press ahead with a Digital Copyright Exchange immediately, or wait to reap the benefit of emerging experience in the UK and elsewhere, particularly at EU level’.[155]

13.97 Similarly, many submissions to the US Copyright Office’s current inquiry into orphan works also supported the creation of a voluntary copyright register.[156] A register was said to be a crucial step in reducing the incidence of ‘abandoned’ as well as ‘kidnapped’ orphan works.[157]

13.98 While the ALRC has not considered the establishment of a copyright or orphan works register in sufficient detail in this Inquiry to support a recommendation, it agrees with stakeholders that such registers would assist in preventing works from being orphaned in the digital environment. The Australian Government may therefore wish to consider international developments such as the DCE and consult stakeholders further with a view to establishing such a register.

13.99 As technology improves, the creation of such registers will become increasingly viable. They would complement the ALRC’s recommendations in this area as use of such a register would be a persuasive factor in determining whether a reasonably diligent search was conducted.[158]

13.100 In the ALRC’s view, any register should be voluntary, as any expanded requirement of formalities would likely violate the Berne Convention, which mandates that the exercise of copyright rights ‘shall not be subject to any formality’.[159]

Recommendation 13–1 The Copyright Act should be amended to limit the remedies available in an action for infringement of copyright, where it is established that, at the time of the infringement:

(a) a reasonably diligent search for the rights holder had been conducted and the rights holder had not been found; and

(b) as far as reasonably possible, the user of the work has clearly attributed it to the author.

Recommendation 13–2 The Copyright Act should provide that, in determining whether a reasonably diligent search was conducted, regard may be had to, among other things:

(a) the nature of the copyright material;

(b) how and by whom the search was conducted;

(c) the search technologies, databases and registers available at the time; and

(d) any guidelines, protocols or industry practices about conducting diligent searches available at the time.