Current law

12.14 There is no specific exception in the Copyright Act for the use of orphan works. Without an exception or appropriate licensing solution, an orphan work cannot be used until it falls into the public domain at the end of the copyright term.

12.15 However, orphan works may be used when covered by a fair dealing exception 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. Cultural institutions that are covered by a government statutory licence under s 183 may copy orphan works for government purposes.[15]

12.16 Libraries, archives and educational institutions may also use orphan works for socially useful purposes under s 200AB. However, as noted in Ch 12, s 200AB has rarely been used to deal with orphan works primarily because of the uncertainty in the language of the section.[16] Some users have a taken a ‘risk management’ approach, for example, by undertaking a diligent search before using an orphan work.[17]

[15] Copyright Agency/Viscopy, Submission 249.

[16] See eg CAMD, Submission 236; Art Gallery of New South Wales (AGNSW), Submission 111.

[17] The National Gallery of Victoria advised that ‘where it has not been possible to clear copyright, we have published the orphan work and invited the copyright holders to contact the NGV. We would much rather publish these works than risk them being unknown to the public’: National Gallery of Victoria, Submission 142.