13.55 Some uses of orphan works can be expected to constitute fair use. Where use of an orphan work is for an illustrative purpose such as ‘quotation’, ‘research and study’, ‘reporting the news’, ‘criticism and review’ and ‘libraries and archives’, it is more likely to be fair.
13.56 The ALRC expects that fair use would be particularly helpful to cultural institutions that are digitising or making available access to orphan works for non-commercial purposes, such as research or study. Cultural institutions suggested that they would be more confident relying on a fair use exception, rather than the exception under s 200AB when using orphan works. For example, the NLA considered that fair use ‘will provide workable solutions to many issues of providing access to orphan works’.
13.57 Submissions to the current US Copyright Office’s Inquiry show that cultural institutions are comfortable relying on fair use to facilitate uses of orphan works. For example, the Library Copyright Alliance stated:
We are convinced that libraries no longer need legislative reform in order to make appropriate uses of orphan works. However, we understand that other communities may not feel comfortable relying on fair use and may find merit in an approach based on limiting remedies if the user performed a reasonably diligent search for the copyright owner prior to use.
13.58 The confidence displayed by US cultural institutions may have resulted from a number of best practice guidelines. For example, the American Library Association and Association of Research Libraries submitted to the ALRC Inquiry that US libraries ‘have gained increasing comfort’ in relying on fair use because of the development of Codes of Best Practice and other education provided through library associations. Similar guidelines could be developed in Australia in relation to orphan works and in particular, around the diligent search criteria.
13.59 However, a use of an orphan work will not always be fair. Whether or not a use is fair must be assessed in accordance with the fairness factors.
13.60 The purpose and character of the use. Uses of orphan works for one of the illustrative purposes of fair use, such as ‘quotation’ or ‘library or archive use’ are more likely to be fair. The extent to which use of an orphan work is ‘transformative’ will also be highly relevant. Commercial uses of orphan works are less likely to be fair; however, this is by no means determinative. US case law illustrates that the commercial use must be weighed against other factors, including whether the use is transformative or harms the market of the rights holder.
13.61 The nature of the copyright material used. US case law suggests that it is easier to argue fair use in relation to works that have been published, rather than those that remain unpublished. US courts have also considered that whether the work was ‘out of print’ or unavailable on the market is an important factor. Use of a work that is out of print or unavailable for purchase through normal channels is unlikely to harm any market. The extent to which an orphan work is factual or creative will also be important. Use of works which are highly factual, or those that were created without the intention of commercial exploitation—such as government or archival records or old war diaries—are more likely to be fair.
13.62 The amount and substantiality of the part used. The influence of the amount and substantiality factor will sometimes depend on the purpose and character of the use. Fair use case law in the US makes it clear that reproduction of a whole of a work can, depending on the circumstances, amount to fair use.
13.63 Effect of the use upon the market. The effect, if any, on the relevant market or markets for the orphan work will be a relevant factor. When considering this factor, the relevant markets are ‘traditional, reasonable or likely to be developed’ markets. If a use fills a ‘market niche’ that the rights holder ‘simply had no interest in occupying’, then the fourth factor may not disfavour fair use. Professor Jennifer Urban has argued that orphan works represent a complete market failure, as there is no owner with whom to transact. Where one party to the transaction is missing, no market can arise for which there would be a negative effect.
NFSA, Submission 750; NSW Government and Art Gallery of NSW, Submission 740; National Library of Australia, Submission 704; ADA and ALCC, Submission 586. See also Ch 12.
National Library of Australia, Submission 704.
Library Copyright Alliance, Comments of the Library Copyright Alliance in Response to the Copyright Office’s Notice of Inquiry Concerning Orphan Works and Mass Digitisation (2013), 7.
American Library Association and Association of Research Libraries, Submission 703.
Stakeholders have expressed a willingness to do this. See, eg, NFSA, Submission 750.
See, eg, The Authors Guild Inc v HathiTrust, WL 4808939 (SDNY, 2012).
Sony Corp of America v Universal City Studios, Inc (1984) 464 US 417; Campbell v Acuff-Rose Music Inc (1994) 510 US 569.
B Beebe, ‘An Empirical Study of US Copyright Fair Use Opinions, 1978–2005’ (2008) 156 University of Pennsylvania Law Review 549, 614–615. InHarper & Row Publishers, Inc v Nation Enterprises (1985) 471 US 539, 564 O’Connor J considered that ‘under ordinary circumstances, the author’s right to control the first appearance of his undisseminated expression will outweigh a claim of fair use’. This line of reasoning was followed until s 107 was inserted into the Act in 1991, providing that ‘the fact that a work is unpublished shall not, of itself, bar a finding of fair use if such a finding is made upon consideration of all the above factors’.
Harper & Row Publishers, Inc v Nation Enterprises (1985) 471 US 539, 553 (‘If the work is “out of print” and unavailable for purchase through normal channels, the user may have more justification for reproducing it.’).
W Patry, Patry on Fair Use (2012), 445.
‘The law generally recognises a greater need to disseminate factual works than works of fiction or fantasy’: Harper & Row Publishers, Inc v Nation Enterprises (1985) 471 US 539, 563.
The Authors Guild Inc v HathiTrust, WL 4808939 (SDNY, 2012).
Princeton University Press v Michigan Document Services, Inc, 99 F 3d 1381 (6th Cir, 1996) (citations omitted).
J Urban, ‘How Fair Use Can Help Solve the Orphan Works Problem’ (2012) 27 Berkeley Technology Law Journal 1, 25.