Position statement: reasonable search for orphan works

Background

NSLA libraries have collections that support creativity, innovation and knowledge exchange. As part of their ongoing commitment to provide public access to collection materials, NSLA is using digital technologies to expand and improve online access to its significant heritage collection materials. Within this context, NSLA will continue both to support creators’ rights and make optimum use of the library and archives exceptions, particularly the flexible dealing exception, of the Copyright Act 1968 (Commonwealth) to provide digital access to collection materials.

NSLA supports a system of copyright in which the rights of creators and the public interest are balanced. Orphan works represent a major obstacle to this balance. An orphan work is a work where the copyright owner can either not be identified or located and permission to digitise and make the work available online cannot be obtained.

Orphan works are generally understood to be older works, but can also be anonymous works on the internet, poorly credited works, abandoned materials, and works where the copyright owner is unaware they own copyright. Orphan works may be either published or unpublished materials. In reference to unpublished materials within NSLA collections, NSLA supports an interpretation of the term publication whereby the act of an authorized person depositing materials into a library or archive will constitute publication for the purposes of determining the duration of copyright: works that have been deposited should not be considered unpublished.

Orphan works are a global problem: photographs, books, music, audiovisual material, letters and diaries and many other documents can be orphan works. The British Library estimates that 40% of its collections fall within the orphan works category. Providing public access to orphan works represents a very significant problem as the task of tracking down and locating copyright holders is a huge drain on resources and is very often unsuccessful. Libraries attempting to address the orphan works problem face a number of complications, including the range of works protected by copyright, such as diaries, letters and photographs never intended to have a commercial purpose and the duration of copyright, which is effectively perpetual for unpublished works.

Various governments have sought to improve access to orphan works. The Australian Government’s most recent amendment to the Copyright Act saw the introduction of a new exception, the ‘flexible dealing’ exception, which offers an option, within designated limits, to use orphan works. The flexible dealing exception (s200AB) operates as a ‘last resort’ solution, as it is only applicable for non- commercial use and where no other exceptions are available. In addition, this exception must meet the so-called ‘three-step test’ of international law: the use must not conflict with the normal exploitation of the work by the copyright holder; must not unreasonably prejudice the copyright holder; and must be a special case.

Principles

In the absence of further legislative reform to the Copyright Act, NSLA supports the following principles to facilitate use of orphan works and the application of the flexible dealing exception. These principles accord with the position promoted by publishing and cultural institutions across the globe.

  • A reasonable search should be undertaken to find the copyright owner before a work is used;
  • The user of an orphan work must provide a clear and adequate attribution to the copyright owner, if known;
  • If the copyright owner reappears, appropriate restitutions should be made;
  • Any restitutions against the use of a previously orphaned work, should take into account the creative efforts and investment made in good faith by the user of the work; and,
  • The use of the orphan works should not be exclusive

Standards for a reasonable search

NSLA advocates that a reasonable search, in keeping with international perspectives, for the rights holders should be undertaken before using an orphan work. A reasonable search may be scalable or modified as appropriate to the context and intended use of the material. Although this will not change the copyright protection of a work, NSLA believes that establishing parameters for a reasonable search provides a practical solution for libraries to use orphan works in some specific circumstances.

In practice, a reasonable search will involve a continuum of effort ranging from minimal through to an extensive or extraordinary search. On this continuum, a greater level of resources and professional expertise will be required to locate the copyright holder of recent and/or works created by professionals as these searches have a higher likelihood of success. Prominent use of a work or a use that would be difficult to rescind or take down will also require greater search efforts.

Quantifying the search effort will be dependent, but not limited to, criteria such as the amount of information on or about the work that is initially available, the age and uniqueness of the work. Use of sampling in certain circumstances (such as the digitisation of very old material that was not produced commercially such as diaries, letters etc.) could be used to meet the criteria of a reasonable search.