The Orphan Works Problem

An upcoming copyright law review may be an opportunity to make it easier to use copyright material where the owner can't be identified or found

A question often asked of Arts Law is whether it is all right for an artist to use a work, for example a photograph, when they can't get in contact with the original artist to ask permission.Where the correct owner of copyright material can't be identified or located, the copyright material is said to be an 'orphan work'.

In today's digital era there are many new applications for archival copyright material. However, orphan works are a significant impediment to these and other projects undertaken by creators, cultural institutions, researchers and other users. As there is no legal obligation on a copyright owner to register or to be easily findable, it can be difficult to track down the owner within a reasonable time frame for a particular project. In some cases, the owner's current contact details can't be found. In other cases the owner can't be identified, for example a still image with no attribution. In other cases, it is difficult to establish who the actual owner of copyright is because of complex copyright rules, or because the creator has died, or a company has been deregistered.

Legal and reputational risks for users

There is no legal presumption that because an owner can't be found that they have abandoned any further interest in controlling use of the material. Accordingly, there is no defence under Australian copyright law for unauthorised use of copyright material just because it is an orphan work. This is the case no matter how diligently a user has tried to search for the owner to ask permission. Unless another defence is available, such as fair dealing for criticism or review, a person who uses copyright material without permission is vulnerable to a claim of infringement if the owner later emerges. If the owner is not happy with the use and licence terms cannot be retrospectively agreed, the user may be liable to pay damages, withdraw the copyright material or to account for profits made.

Orphan works can also create secondary risks for the user. Where a user is receiving funding or is licensing material containing an orphan work via third parties, the funding body or licensee may require a warranty that all copyright clearances have been obtained. This can lead to a difficult legal situation – the user may be required to indemnify the third party against the risk, including their legal costs. It can be difficult to obtain insurance against these risks. In other cases, the third party will not accept material which contains an orphan work at all.

There are also reputational risks for the user in using copyright material without permission. As users, creators and owners of copyright often work in close collaboration in their various industries, it is important that goodwill, trust and respect for copyright is maintained. Use of copyright material without the participation of the author can also risk moral rights infringements, as the author may object to editing, context or the form of attribution when he or she sees how it has been used. In other cases, owners may be concerned that the unauthorised use has increased "piracy" risks, as for example where a work is put online without attribution of the owner.

Because of these risks, many users steer clear of orphan works. However, sometimes this is not possible as the material is unique or special in some way and is vital to the creative, curatorial or other aims of the user. An example might be a play which a theatre group wishes to revive, where the play itself is central to the project and cannot be replaced. 

Orphan works are a significant issue for cultural institutions holding archival collections. For example, the National Film and Sound Archive (NFSA) estimates that around 20% of its collection is orphaned or abandoned, because many deposits were made without correct rights information accompanying the old tapes. This makes it difficult for the NFSA to share its collection with the public in online and other applications.

In the case of the Special Broadcasting Service (SBS) where I work, a significant number of programs held in our archives have underlying material such as music, stills, third party footage and performances for which the copyright owner is not identified in the records, or now cannot be found. In many cases film production companies who supplied production services or footage to SBS are long defunct. This impedes SBS's ability to use its valuable archival programming material in new documentaries, online and other platforms, and to provide it to researchers and documentary makers.

Solutions needed

In a digital age where content has so many applications, orphan works are a significant impediment which needs to be solved. The orphan works issue is detrimental to public access to orphaned copyright material, and to the creators and cultural institutions who wish to use it. It is also detrimental to copyright owners, who miss out on revenue and recognition  – either when their works are used without their knowledge, or in other cases, not used at all because of fears of copyright infringement. In the government sector, orphan works may prevent public sector information from being released under the government's preferred open licensing model.

The issue of "orphan works" has been identified as an area needing legal reform for some years, and has been discussed at numerous creative and cultural industry fora. User groups have expressed a wish for reforms which are simple and remove the prohibitive risks and transaction costs of dealing with orphan works under the current copyright system. However, as has been found in some overseas jurisdictions, it is not easy to find a consensus on the kind of reforms required. For example, a reform model which removes liability entirely in certain circumstances raises concerns for owners that this would act as an incentive for users not to search for them. Owners have also expressed concerns that schemes which require registration or allow default use with "opt out", water down their legitimate rights of ownership. Other concerns may apply to particular kinds of copyright material and their context of use, suggesting that a one size fits all model may not work unless there is some flexibility inbuilt to take account of industry practice.

What's next

On 25 February 2011 at the Blue Sky Copyright Conference convened by QUT, the Attorney General announced that the Australian Law Reform Commission will be given a reference on copyright law later this year. While he did not specify what its terms will cover, orphan works has been on the Attorney General Department's reform list for some years, and so it is hopeful that orphan works will be included for review.

The Attorney General indicated that as far as possible, industry consensus should be sought as a precondition to any copyright reforms.  One way for consensus to build on orphan works reform is for users and copyright owners to discuss best practice and areas of common agreement on treatment of orphan works. This may include the identification of practical measures which could supplement legal reforms. SBS recently launched its ten point best practice approach to use of orphan works at the round table convened by the University of New South Wales Cyberlaw Centre Orphan Works Project on 8 February 2011. SBS is inviting comment on the statement and its practical application and we hope to see other similar statements published and discussed. Hopefully our statement will contribute in a small way to building industry consensus on law reforms for orphan works.

Sally McCausland is a Senior Lawyer at SBS and a director of Screenrights. This article represents my personal views and not those of SBS or Screenrights.

Further resources:

Some Information Sheets on finding copyright owners

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