Orphan works

11.62 Many mass digitisation projects may involve substantial numbers of orphan works. In Chapter 12, the ALRC proposes that remedies available to a rights holder be limited where use of an orphan work has been made following a ‘reasonably diligent search’. However, it may be impracticable or impossible to conduct a ‘reasonably diligent search’ in a mass digitisation project. Further, the fair use exception may not always apply—much will depend on how well the project maps to the contours of the fair use and the fairness factors.

11.63 The attraction of extended collective licensing is that a user can license a multitude of works in one transaction—including orphan works—as well as those belonging to rights holders who are not part of the collective. While the problem that money collected may not reach the rights holder remains, the benefits of absolute certainty from the risk of injunctive relief may justify up-front payment. For example, Google submitted that:

If a rights holder later comes forward, there should be a way for them to be reasonably compensated, but not in a way that can kill good faith projects. No large scale project will make the necessary investment in time and money if the whole endeavour can be shut down at anytime if a rights holder later comes forward and demands punishing monetary damages or an injunction.[77]

11.64 Licensing solutions could make it easier for cultural institutions to engage in mass digitisation and communication of orphan works for commercial reasons, or where public-private partnerships require agreements that allow partners to use copyright material for commercial purposes.[78] As noted in Chapter 12, if the option of voluntary extended collective licensing existed, users may wish to pursue this option rather than relying on fair use or the limitation on remedies following a diligent search.

11.65 In Chapter 6, the ALRC proposes repeal of the statutory licences for educational and government uses of copyright material in favour of voluntary licensing. Australia has a number of established collecting societies who could grant licences for mass digitisation projects. However, these collection societies may be need to be empowered to grant licences on behalf of rights holders who are not members in order to facilitate mass digitisation projects.

11.66 The ALRC welcomes stakeholder comments on whether the Copyright Act should be amended to facilitate voluntary extended collective licensing for mass digitisation projects. For example, should the Copyright Act be amended to provide a framework that facilitates voluntary extended collective licensing, similar to that proposed in the UK?

Question 11–1 Should voluntary extended collective licensing be facilitated to deal with mass digitisation projects by libraries, museums and archives? How can the Copyright Act be amended to facilitate voluntary extended collective licensing?

[77] Google, Submission 217.

[78] For example, ‘non-profit institutions and public lending entities often forge partnerships with commercial entities, seeking the support of technology companies or similar actors to fund or implement their projects, and entering into agreements that may allow their partners to use the digital collection— including, in some instances, works protected by copyright law—for commercial purposes’: United States Copyright Office, Legal Issues in Mass Digitisation: A Preliminary Analysis and Discussion Document (2011), 9.