Current law

13.12 There is no specific exception in the Copyright Act for the use of orphan works. Unless covered by an exception or licence, use of an orphan work may constitute copyright infringement.

13.13 However, orphan works may be used when covered by existing fair dealing exceptions or a statutory licence. For example, the statutory licences under pts VA and VB of the Copyright Act allow the copying and communication of materials for education, whether or not they are orphaned, subject to the payment of reasonable remuneration to a declared collecting society.[12] Cultural institutions that are covered by a government statutory licence under s 183 may copy orphan works for government purposes.[13]

13.14 Some users have also used orphan works by taking a ‘risk management’ approach, for example, by undertaking a diligent search before using an orphan work.[14]

13.15 Libraries, archives and educational institutions may also use orphan works for socially useful purposes under s 200AB. However, as noted in Chapter 12, s 200AB has been used on rare occasions to deal with orphan works primarily because of the uncertainty in the language of the section.[15]