What we want
We want to see the full potential of orphan material activated through productive and creative uses in the public interest.
The problem
Cultural heritage institutions, higher education institutions, research institutions and other knowledge-based organisations play a fundamental role in the collection, preservation and dissemination of knowledge and culture to communities across Australia. The advancement of digital technology has resulted in an unprecedented demand for access to information while presenting opportunities and threats.
These institutions strive to provide access to online material where legally possible, but are often hindered by outdated and restrictive copyright laws, particularly in relation to orphan materials. Currently, there is no specific exception in the Copyright Act for the use of orphan materials. Unless material is in the Public Domain, or is covered by another exception or a licence, use of an orphan work, even after conducting an extensive due diligence search, may constitute copyright infringement.
This results in loss of potential productive and beneficial uses of orphaned material for both users and copyright holders. Collections held by cultural institutions risk being ‘locked up’ which undermines public interest mandates such as the dissemination of cultural heritage.
Our preferred solution – Limitation on remedies for use of orphan material
We support the introduction of a scheme to limit remedies available to a copyright owner of (formerly) orphaned material when that material is used by another party.
The Australian Law Reform Commission (ALRC) Copyright and the Digital Economy report released in 2013 sets out the ALRC’s key recommendations for an orphan materials solution. The ALRC considered that reform in this area should have the primary aim of making orphan material more widely available for use in the digital economy, while at the same time acknowledging and respecting authorship and creation. The ALRC recommended that any solution needs to ensure that identified copyright holders are adequately compensated, and be effective and efficient, such as by minimising any transaction costs and reducing unnecessary burdens on users, including public cultural institutions. We support these recommendations and note that such a scheme was proposed in the exposure draft of the Copyright Amendment (Access Reform) Bill 2021.
Further, we hold that it is appropriate that a user under an orphan materials scheme be required to attribute the author of a work to the extent it is reasonably practicable to do so.
Importantly, there may be circumstances where it is reasonable to expect a more onerous search effort before using orphaned content, and as such a limited liability scheme for orphan material must accommodate contextually relevant and proportional search effort depending on the purpose and character of the intended use of the copyright material.
Likewise, where a copyright owner is later identified, it is appropriate to require the parties to negotiate terms for ongoing use of the formerly orphaned content if the user of the material wishes to continue using it. Where agreed terms cannot be reached, either party should be able to apply to the Copyright Tribunal to fix reasonable terms for the ongoing use of the material. Where terms have been set (by mutual agreement or by the Tribunal), it is appropriate that where a user breaches those terms, they will not be protected by the limited liability scheme for orphan materials.
Key benefits of a limited liability scheme for orphan materials
A limited liability scheme will result in positive public interest outcomes by opening up orphan materials to productive and socially beneficial uses, while also simplifying decision-making for cultural institutions and reducing their risk and administrative burden when undertaking mass digitisation projects. For historians, the scheme will provide greater flexibility when using materials in research outputs such as reports and publications. Artists will have access to unique orphaned materials to fuel their creativity. Documentary filmmakers and screen producers will face fewer complexities when seeking to use orphaned materials, which are currently often locked away from them due to the legal and insurance risk. Finally, the scheme will enable students, teachers, and lecturers to incorporate orphan materials into their coursework, lessons, and conference presentations, and will open up orphan materials for use in machine learning and artificial intelligence applications.