Proposed amendments to Copyright Act: Limited liability scheme for use of orphan works
Creators and copyright owners alike need to be aware of looming changes to the Copyright Act that will see “orphan works” opened up for broader use.
“Orphan works” are copyright materials whose author or copyright owner cannot be identified or located. At present, the use of orphan works by others simply risks a claim for copyright infringement. This is regardless of whether attempts have been made to locate or contact the copyright owner, with the intention of securing a licence.
This is why sometimes notices are seen, for example, in the preface to books, which request copyright owners to come forward in respect of reproduced or quoted materials used in the book. In those cases, the publisher has taken a calculated risk in using the material. However, some creators are unwilling to take this risk, which means that orphan works may not be used to their full potential.
The proposed changes to the Copyright Act will limit the infringement liability of orphan works users pending the copyright owner coming forward, if a “reasonably diligent” search has been undertaken to identify or locate the owner, and so far as possible, the author of the work has been attributed. What constitutes “reasonably diligent” searches remains to be seen but according to the government’s information about the proposal, might be informed by guidelines from relevant industries or sectors.
If the copyright owner later comes forward, the ongoing use of the work will be permitted if reasonable terms can be agreed, or if not, might instead be fixed by the Copyright Tribunal.
While orphan works can be new or old, they are not the same as materials that have entered the public domain after the term of copyright has expired. Their status as copyright works presents vexed issues for potential users.
- For authors or copyright owners whose works are likely to be used or shared by others, this will introduce an imperative to ensure that your works is identifiable and attributable to you, otherwise there is the possibility of lost royalty or licence revenue if you are unable to be contacted or identified. If not already, consider joining the relevant copyright collecting society for that type of material, and don’t allow the work to be released or remain “in the wild” without your authorship details on it.
- If you’re a creator who uses other works, the change will provide comfort that orphan works can be used more freely, opening up creative possibilities and allowing access to a greater range of materials. However, genuine attempts to first identify and locate the owner will be required, and be prepared to negotiate ongoing use if the owner ever comes forward.
Anticipate draft legislation to be released later in 2020.