12.1 The fair use exception may be used to determine whether a use of an orphan work infringes copyright. However, where such a use is found not to be fair and infringes copyright, the remedies for infringement should in some circumstances be limited.

12.2 The ALRC proposes that the Copyright Act 1968 (Cth)be amended to provide that remedies available for copyright infringement be limited where a defendant establishes that the work in question was an orphan work, and a ‘reasonably diligent search’ was conducted for the rights holder and the rights holder was not found.

12.3 What constitutes a ‘reasonably diligent search’ may change as new technologies, databases, registers and services emerge. The Copyright Act should therefore not set out precisely what constitutes a reasonable search, nor provide that only declared bodies may conduct such searches. Rather, the Copyright Act should provide that a number of factors may be considered in determining whether a reasonably diligent search has been conducted.

12.4 In Chapter 11 the ALRC discusses amending the Copyright Act to facilitate extended collective licensing for mass digitisation projects. If collecting societies offer licences for the use of orphan works, some users may prefer to obtain such licences, rather than rely on a provision limiting the remedies available to the rights holder.