16 May, 2012
Story and Photo by: Bonnie Yiu
The Communications Law Centre at UTS welcomed the public and a team of panellists to the launch of the orphan works discussion paper on the evening of 3 May 2012.
Commissioned by Screenrights, this paper, “The Use of Subject Matter with Missing Owners – Australian Copyright Policy Options” was jointly written by Professor Michael Fraser from the Communications Law Centre, UTS and Associate Professor David Brennan from the University of Melbourne. It proposes a way for people to use published and unpublished work legally when they cannot find the copyright owner.
Michael Fraser said, “The proposal helps unlock countless works so that galleries, museums and documentary film makers can use materials that are currently impossible to access legally. It means copyright can facilitate better access to valuable content and cultural assets.”
Professor Fraser believes the scheme is crucial to facilitate the legal use of orphan works, which otherwise would infringe copyright.
The paper recommends an orphan works register as a solution for the reuse of published materials. After a diligent search for the copyright owner users may register the material they want to use in an orphan works register. After a period, licences apply for specific uses of the material.
Panelist Sally McCausland, a senior lawyer at Special Broadcasting Service (SBS) who has also written on the issue warmly welcomed the proposal, saying it helps put much-needed certainty into the use of orphan works.
As there currently is no defence to the use of orphan works here in Australia, a significant amount of valuable archival materials have not been used for copying and communicating online by most art galleries and media organizations to avoid such risks.
Another panelist, Chris Shain, who works as a Sydney-based professional freelance photographer, agrees that the issue of orphan works needs to be dealt with seriously. He describes what he sees as a rampant violation of copyright materials being illegally republished through the use of the Internet and he hails the proposed licensing system as an effective solution of addressing the issue.
“If it is a reality that there is just going to be more and more orphan works [out in the public], then the proposed orphan works register gives owners a real opportunity to make some money through a licensing system,” Shain said.
The paper goes further than the current developments in the European Commission and the United Kingdom where suggestions have been made to institute solutions to the orphan works problem.
The authors and the panelists are all of the view that ultimately, an effective licensing system requires global collaboration in formulating evolving guidelines and they advocate that Australia should participate in the international discussion on the issue.
Another aspect to the orphan works issue that was explicitly excluded from consideration was mass digitization. The prime example is the case of The Authors Guild v. Google in 2011, which saw publishers and authors bringing a class action against Google for scanning entire holdings of some U.S. university libraries and displaying so-called “fair-use snippets” that involved many orphan works without the owner’s consent.
While the paper did not discuss the issue of mass digitization, the authors recommend that the issue be considered by the Australian Law Reform Commission (ALRC) as part of its current copyright inquiry, which is led by Professor Jill McKeough, Dean of Law at UTS who is currently on leave for the duration of the inquiry.
The release of the paper has identified the key challenges of the issue of orphan works in Australia and sets a firm base for further discussion and formulation of policies on the issue.