12.58 Use of orphan works may in some circumstances be fair, under the fair use exception proposed in Chapter 4. Cultural institutions may be more likely to rely on a fair use exception, including when using orphan works, than the current exception in s 200AB.
12.59 Cultural institutions have submitted to the current US Copyright Office’s Inquiry that the fair use exception is now more certain than it once was, and that further legislative reform to enable the use of orphan works may not be necessary for cultural institutions. For example, the Library Copyright Alliance has written:
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.
12.60 Professor Jennifer Urban argues that fair use provides a partial solution to the orphan works problem for libraries and archives that digitise and communicate orphan works for non-commercial reasons. She argues that:
inquiry into a work’s ‘orphan’ nature would give useful guidance as to whether incentives to create would be harmed by digitising and communicating the work;
orphan works represent a ‘complete market failure’ because one party to any proposed transaction is missing and since there is no party exploiting the work, there is no existing market that can be harmed; and
the purposes for which orphan works are used by libraries and archives, such as communication to promote education and research should often be recognised as fair use.
12.61 The option of fair use may be attractive to libraries and archives who wish to use orphan works. However, not all uses of orphan works will be fair, and the question will require consideration of the ‘fairness factors’. For example, certain commercial uses of orphan works may not be fair use.
 See also Ch 12.
 Library Copyright Alliance, Comments of the Library Copyright Alliance in Response to the Copyright’s Office’s Notice of Inquiry Concerning Orphan Works and Mass Digitisation < www.copyright.gov/orphan/comments/noi_10222012/Library-Copyright-Alliance.pdf> 20 May 2013.
 J Urban, ‘How Fair Use Can Help Solve the Orphan Works Problem’ (2012) 27 Berkeley Technology Law Journal 1, 18. For example, the ‘orphan’ work whose owner cannot be located suggests a high probability that is has been economically abandoned, or further inquiry might find that the work was not created for the purposes of copyright exploitation. Both of these factors would weigh in favour of fair use.
 Ibid, 25.
 Ibid, 35–46.