Position statement: reasonably diligent search for orphan works

(Note: this is a summary only; the full document is available below for download.)

NSLA supports a system of copyright in which the rights of creators and the public interest are balanced. As NSLA libraries seldom own copyright in collection materials, adherence to copyright is a fundamental consideration that influences operational activities, and at times restricts our ability to fulfil our legislative obligations. While NSLA welcomes the recent standardisation of the copyright term for orphan works, the challenge of acquiring permission remains a major barrier restricting the ability to fulfil our obligations.

Orphan works are in-copyright works where the creator cannot be identified and/or located, which makes obtaining permission to use impossible. Orphan works cover all formats (analogue and digital) and, although generally thought of as older works, can include any work lacking sufficient information about the creator, including those with anonymous or pseudonymous authors. Abandoned works, where the creator is known but non-responsive, contribute to the problem, as does the fact that copyright treats personal items such as diaries, letters and photographs equally with commercial works.

NSLA supports the introduction of legislative reforms to modernise the Copyright Act 1968 (Cth) and to address the issue of orphan works so that both institutions and individuals have the right to freely and fairly use orphan works following a reasonably diligent search for the rights holder. NSLA further advocates the adoption of a limited liability scheme for both institutions and individuals provided a reasonably diligent search has been undertaken, and the use is in good faith.

Principles

NSLA anticipates and welcomes ongoing copyright reform to improve access to orphan works, and in the interim supports the following principles to facilitate use of orphan works. These principles are applicable to institutions and individuals seeking to use orphan works.

  • A reasonably diligent search to find and locate the copyright owner will be conducted before the work is used.
  • Any use of an orphan work will be non-exclusive and will seek to provide clear and adequate attribution of the rights owner, if known.
  • If the copyright owner appears at a later date, restitutions may be provided in appropriate circumstances, however, these will take into account the creative efforts and investment made in good faith by the user of the work.
  • Use of orphan works will respect any protocols relating to Indigenous materials.

Standards for a reasonably diligent search

NSLA advocates undertaking a reasonably diligent search for the rights holder before using an orphan work. In keeping with international practice, a reasonably diligent 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 reasonably diligent search provides a practical solution for libraries to use these works in conjunction with s200AB and risk management principles. This may also provide opportunities, through public exposure, to reunite rights holders with their works.

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
  • the prominence and extent of the use of the work
  • whether the work is of a commercial nature.

Use of sampling in certain circumstances (such as the digitisation of non-commercial works like diaries, letters, etc.) may be used to meet the criteria of a reasonable search.

As far as practicable, libraries will identify the status of an orphan work in collection management and/or other relevant databases, and search records archived in provenance files. All efforts to reduce the number of future orphan works will be undertaken: this includes establishing and recording details of rights holders at the time of acquisition and accessioning copyright material into the collection. NSLA encourages copyright owners to come forward, and will as far as practicable, work to ensure that rights holders’ details are current.

Originally released December 2010; revised February 2019