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What’s happening?

A proposed new scheme to limit liability for use of “orphan works” – copyright materials with unidentifiable or uncontactable owner(s). If the reform becomes law, use of this type of material would not attract any liability until such time as its copyright owner becomes known or contactable again.

Just prior to Christmas, the government quietly released a long awaited exposure draft of proposed new “access reform” amendments to the Copyright Act, which include orphan works (among several other proposed reforms).

Who needs to know?

Creators – both those:

  • who use third party materials in their work; and
  • whose work might be used by others.

Publishers, authors, website builders, archivists, documentary makers, multimedia creators, researchers, artists, programmers & coders who input content into machine learning

When is this happening?

Submissions about the proposal can be made until 25 February 2022.

This is an exposure draft for discussion purposes. There is no bill introduced to Parliament yet, so no set timeframe on when the proposed reform might commence operation.

What do you need to do?

This issue often affects use of historical or old materials. However, if you are a creator whose work might be used by others, get ready by ensuring that your works identify you and allow others to contact you so that they do not become “orphans” and you do not miss out on any royalties or licence fees.

If creators want to use content in their work whose owner is unknown or uncontactable, the new scheme will give greater confidence to use that content. However, a “reasonable search” for the owner – taking into account a number of factors – will be necessary before liability is limited. If the owner later emerges, then royalties or licence fees for use of the content can be negotiated, or failing that, determined by the Copyright Tribunal.

https://www.infrastructure.gov.au/have-your-say/have-your-say-draft-copyright-reform-legislation

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