You live in a war zone. You find a manuscript in a pile of rubble and rescue it. You escape to another country, with nothing but this manuscript, a fictional novel. Unsure what to do with it, you hold on to it for 30 years, then try to publish it because it’s so beautiful. Are you allowed to do that?

You have an old diary that you found on the side of the road that you want to use passages out of in a film you are writing.
You find a photograph online that you want to use on your website.
You want to use parts of a home video you found in a second-hand store a decade ago.
You want to publish a book written by someone who died a few years ago, leaving no heirs to inherit the copyright.

What do you do?

Orphan copyright is a complicated legal grey area regarding ‘orphan works’ – copyright material where the author is no longer alive or cannot be identified. In some cases, orphan works may be protected by copyright, with no special exception allowing for the use of orphan works in Australia. If you cannot identify the copyright owner, it would be best to get legal advice. Some areas have special provision for the use of orphan works.

     What is the problem with orphan works?
An orphan work is one that may be protected by copyright, but the owner of said copyright can’t be found. If you want to use this material, you can’t get permission to do so because you cannot contact this person, and thus must rely on being granted an exception. Using the material may infringe on copyright and legal action may ensue.

There is an argument that there should be a mechanism by which a person can use orphan work without risk of being sued if they can show that they have taken the proper steps to identify or locate the owner of the copyright. This may apply to a museum or art gallery that wants to make digital copies of collections, and possibly allow online access, but some artefacts are very old or don’t last a long time.

A copyright owner may fear that orphan works laws may affect their ability to control their work and earn a living from it if they are unable to be ‘found’. This may be so in cases of say a photograph found online, whereby a person ‘tried’ to find the photographer, but wasn’t able to. Apply that to writing, films, cartoons, animations, and so on, and we end up with a new problem.

     Orphan works law in Australia
There are exceptions to copyright infringement under the Copyright Act in Australia, with none permitting the use of a work without permission just because it’s an orphan work and users of such work having to make their own risk assessment. There is one exception that allows the publication of old, unpublished orphan works held in libraries so long as some conditions are met. An exception is more likely to be made for a university or library.

The Australian Law Reform Commission (ALRC) published a report that considered orphan works in 2014. They recommended that if a diligent search had been carried out, that the penalties for copyright infringement in these cases be limited. The author should be attributed where possible.

The ALRC gave the following recommendations on elements that must be considered: 

• The nature of the material
• How and by whom the search for the copyright owner was conducted
• What search technology was available at the time
• Any guidelines, protocols or industry practice regarding what constituted a diligent search at the time

     What other countries are doing regarding orphan works
In the United States, the US Copyright Office proposed applying limits for copyright infringement penalties regarding orphan works by defendants who had used the work in good faith, after trying to find the copyright owner. Congress did not pass the proposals, however in 2012, the Copyright Office started the discussion again, and in 2014 held a two-day public roundtable on the issue. Online copyright is being reviewed, with orphan works part of that.

Europe allows limited use of orphan works held by some cultural organisations, as of 2014. These organisations include libraries, educational establishments, museums, archives, film or audio heritage institutions, and public service broadcasters. Before any publication is allowed, these organisations must search diligently in good faith to locate the copyright owner.

If no owner can be identified, the material is then considered orphan work, and the work may be used to ‘achieve aims related to their public interest mission’ without permission. Copyright owners can come forward at any time to end the orphan work status, and receive fair compensation.

In the United Kingdom, the UK Intellectual Property Office (IPO) has set up an orphan works scheme with licences granted, in effect acting as the copyright owner, but only after a diligent search has been made for the owner. A fee is paid, then set aside for copyright owners that may appear at some later time. These works can be used for commercial and noncommercial purposes.

If you want to publish an orphan work, consider the following in your risk assessment:

• Age of the work
• Chances of the copyright having expired already
• Substitutions for the work that are possible
• Are there alternatives to the method of publication you are proposing? (Hard copies versus online)
• Possible value of the work
• If someone does come forward as the owner, can you undo your publication easily enough?
• Demonstrate you are acting in good faith
• Be open to negotiation should someone come forward
• Put some money aside in case the owner comes forward

How to protect yourself from your work becoming orphan work in the future

• Put your name on your work so that anyone with access can see it and contact you
• Use the copyright sign to show people that the work is copyrighted
• Be contactable – be a member of any organisations, have a website, etc.
• Embed digital signatures in files – watermarks, metadata, etc.
• If possible, make files hard to copy or access without permission
• Register your work with a government agency
• Find infringements and act on them

     If you are involved in a copyright case
You may need legal advice regarding copyright law or legal representation. Contact Vanessa Ash for a free chat about your circumstances to see if we can help you.

Write your own story. Call Vanessa Ash and Associates today.