13.6 Orphan works are a significant problem around the world. The inability to use orphan works means that their productive and beneficial uses are lost to both users and copyright holders. The Australian Attorney-General’s Department review of orphan works (the AGD Orphan Works Review) noted that enabling uses of orphan works could contribute to ‘research, education, culture and to the creation of further transformative works’ as well as ‘commercial purposes, thus increasing the already considerable contribution of copyright industries to the Australian economy’.
13.7 Enabling the use of orphan works in the digital environment would potentially facilitate other socially beneficial uses, enabled by technology, mentioned elsewhere in this Report, including data and text mining, digitisation and other uses.
13.8 This Inquiry has found that orphan works present particular problems for cultural institutions, many of which are inhibited from digitising and providing access to orphan works in their collections to aid research, education and access to cultural heritage. For example, the 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’.
13.9 The extent of the orphan works problem has not been quantified in Australia. However, anecdotal evidence received from stakeholders suggests that the problem is real. For example, the NLA estimated that it has some 2,041,720 unpublished items in its collection, a significant number of which are orphan works. The result of a survey of members of the ADA and ALCC indicated that library collections comprise up to 70% unpublished orphan works. A number of museums also indicated that their collections include a substantial number of orphan works.
13.10 Public broadcasters—the ABC and the SBS—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’. Free TV Australia also observed that broadcasters had problems using archival material, such as audiovisual footage or photographs, where the owner could not be found.
13.11 The ALRC heard that photographs are susceptible to being ‘orphaned’ in the digital environment, due to rights information being removed. Measures to reduce instances of orphan works in the digital environment are considered below, in relation to the possibility of an orphan works or copyright register.
I Hargreaves, Digital Opportunity: A Review of Intellectual Property and Growth (2011), 38 notes that orphan works represent ‘the starkest failure of copyright to adapt’ and that the UK system is locking up ‘millions of works in this category’. Similar findings have been made elsewhere in Europe: Comité Des Sages, The New Renaissance: Reflection Group on Bringing Europe’s Cultural Heritage Online (2011), 20–21 recommended that ‘a European legal instrument for orphan works needs to be adopted as soon as possible’.
Australian Government Attorney-General’s Department, Works of Untraceable Copyright Ownership—Orphan Works: Balancing the Rights of Owners with Access to Works (2012), 3. The report suggests that orphan works affect large parts of the economy, including: information technology companies, Indigenous creators, news and print media, composers, photographers and web-based creators.
National Archives of Australia, Submission 595; National & State Libraries Australasia, Submission 204; National Gallery of Victoria, Submission 142.
CAMD, Submission 236.
National Library of Australia, Submission 218.
See ADA and ALCC, Submission 213.
National Gallery of Victoria, Submission 142; Powerhouse Museum, Submission 137; Art Gallery of New South Wales (AGNSW), Submission 111.
ABC, Submission 210.
Free TV Australia, Submission 270.
Copyright Agency/Viscopy, Submission 249; Australian Copyright Council, Submission 219; ALPSP, Submission 199.