For Great Justice

Towards Flexible and Fair Orphan Works Laws for the Digital Economy

By Simon Collinson

This paper was originally written as a dissertation towards a Bachelor of Laws and Legal Practice (Honours) at Flinders University, South Australia, and submitted on 22 November 2013.

Contents

• Introduction
• A brief introduction to copyright
• What is an orphan work?
• What is the orphan works problem?
• Case Study: All Your Base Are Belong To Us
• Fair dealing and fair use
• Institutional exceptions to copyright law
• Case Study: Google Books
• Existing orphan works systems
• The Canadian model: centralised licensing
• The Nordic model: extended collective licensing
• The EU Directive: diligent search for cultural institutions
• Proposed models
• Australia: limitation of liability
• United Kingdom: statutory licences
• United States: limitation of liability
• Criticism of proposed approaches
• The diligent search standard
• The Australian approaches
• The US approach
• The EU approach
• Criticism of proposals
• The re-emergence of the rights holder
• How much compensation should be granted?
• Can the rights holder prevent derivative use?
• My proposals
• Prevent works from becoming orphaned
• Design and mandate an orphan works mark
• Reintroduce formalities
• Conclusion
• Bibliography

Introduction

The relentless advance of technology has already rendered many areas of law unworkable, and it will continue to do so in the future. Copyright has been subjected to robust challenge by the rise of digital technology and the internet, and within copyright law, one of the most pressing problems is the status of orphan works: in-copyright works whose authors cannot be found.¹ This paper surveys international laws dealing with orphan works, both extant and proposed, discusses models for diligent searches for rights holders, canvasses problems associated with those rights holders’ re-emergence, and proposes a number of minor and major reforms aimed at resolving the orphan works problem. My aim is to determine how the challenge posed by ophan works may best be addressed at the domestic and international levels.

A brief introduction to copyright

Copyright is a form of personal property whose subject is ideas – literary works, music, computer programmes, and so on. British legal theorist Ronan Deazley summarises its operation as follows:

copyright as an institutional phenomenon functions by conferring upon the owner of the copyright in a work a bundle of rights … which rights enable that owner to prevent others from using the work, in certain ways, without first asking for permission to do so.²

Copyright has been a key part of most western legal systems since the first copyright act, the Statute of Anne, was passed in England in 1709.³ It has expanded from a right protecting only literary works into a multifaceted right capable of covering all manner of uses of a wide range of creative works. It is commonly conceived of as a compromise between the interests of the individual creator of the copyrighted work and those of the broader public.

Justifications for copyright

Copyright is commonly justified by reference to two ideas: firstly, creators’ supposed natural law or moral right to the fruit of their labours (the ‘natural rights perspective’),⁴ and secondly, as an incentive to create copyrighted works which will benefit society, and in the long run enrich the public domain (the ‘utilitarian perspective’).⁵ Some jurisdictions, such as the United Kingdom and Europe, prefer the natural rights perspective, while others, such as the United States, prefer the utilitarian.⁶

Although at first glance this may seem a somewhat arcane debate – indeed, copyright academic Christopher Sprigman argues that ‘in reality copyright systems in the developed world have converged, and now provide a set of protections that approach what one would expect under a natural rights paradigm’⁷ – the purpose for which copyright is granted is capable of having a real effect on how the orphan works problem is solved. This is because approaches grounded in a natural rights paradigm will tend to prefer the interests of the author over those of the public, whereas approaches based on utilitarian considerations will do the reverse.⁸ Australia’s copyright legislation does not contain an objects clause, so it is difficult to say with certainty which justification is predominant here, if any, but arguably Australia inherited the UK’s preference for natural rights when its copyright law was received by the early colonies in 1828.⁹

Copyright in Australia

In Australia, the power to make laws with respect to ‘copyrights, patents of inventions and designs and trade marks’ is granted to the federal parliament by s 51(xviii) of the Constitution, under which the current version of our copyright legislation is made, the Copyright Act 1968 (Cth).

The subjects of copyright are divided into two classes: ‘works’ and ‘subject-matter other than works’.¹⁰ A ‘work’ is defined to mean ‘a literary, dramatic, musical or artistic work’.¹¹ A ‘literary work’ can also be ‘a computer program or compilation of computer programs.’¹² The category of ‘subject-matter other than works’ includes sound recordings,¹³ cinematograph films,¹⁴ television and sound broadcasts,¹⁵ and published editions of works.¹⁶

For literary, dramatic, and musical works, the copyright owner holds the exclusive right:

(i) to reproduce the work in a material form;

(ii) to publish the work;

(iii) to perform the work in public;

(iv) to communicate the work to the public;

(vi) to make an adaptation of the work;

(vii) to do, in relation to a work that is an adaptation of the first-mentioned work, any of the acts specified in relation to the first-mentioned work in subparagraphs (i) to (iv), inclusive¹⁷

Over time, the duration of copyright has expanded from a strictly limited right expiring within a few decades of issue to a right extending until seventy years after the rights holder’s death,¹⁸ and for seventy years from publication in the case of anonymously-owned copyrights or works still unpublished at their creator’s death.¹⁹

While copyright subsists in a work, the copyright owner may ignore the work entirely, exploit it, or – crucially – assign or licence any or all of her exclusive rights to another person.²⁰ The difficulty of finding copyright owners in order to negotiate licences for the use of their works is the core of the orphan works problem. Although certain limited uses of orphan works are permissible without the consent of the copyright owner – known as ‘fair uses’ or ‘fair dealings’ and discussed below – the protections do not extend far enough to make ordinary use of orphan works practical in all circumstances. The Australian Law Reform Commission (ALRC) is currently conducting a review of copyright law, entitled Copyright and the Digital Economy, which is scheduled to produce its final report on 30 November 2013. A Discussion Paper released in May contains many of its preliminary recommendations, including those relating to orphan works.²¹

Copyright in International Law

At the international level, copyright is governed by a number of multilateral treaties, which have resulted in a high level of uniformity among states’ legislation on the subject. The earliest and most important of these treaties is the Berne Convention for the Protection of Literary and Artistic Works.²² Signed in 1886 by ten nations, the Berne Convention’s most important feature was the principle of national treatment: the requirement that each member afford the same rights and protections to a citizen of any other member whose rights had been infringed in the first member’s territory.²³ Since the introduction of Berne, copyright has been further regulated at the international level by the Agreement on Trade Related Aspects of Intellectual Property 1995 (TRIPS),²⁴ and the 1996 WIPO Copyright Treaty.²⁵

In Australia’s case, our copyright system has also been altered in order to comply with our free trade agreement with the USA, which has involved, inter alia, extending the duration of numerous classes of copyright.²⁶ As will be seen below, neither the international treaty system nor the numerous bilateral and multilateral agreements relating to copyright have proven capable of dealing with the challenge posed by orphan works.

What is an orphan work?

The term ‘orphan work’ is usually used to encompass both works whose owners are not known and works whose owners are known but cannot be contacted.²⁷ There is some argument over whether the latter category should be classified as orphaned, since the owner is at least theoretically capable of being found, but because the literature overwhelmingly describes such works as orphaned, I will include them within the definition for the purposes of this paper. Sometimes it is impossible to tell whether orphan works are still within copyright, since they may also lack information as to the date on which they were created: as, for example, with undated photographs.

Works can be orphaned in a number of ways: the most common is simply where the work has insufficient identifying information associated with it, or none at all, thwarting any search for its owner before it has even begun. However, research has shown that works are also commonly orphaned where a rights owner dies or a business ceases to exist, rights to the work are assigned to an unknown person, and even where the rights owner is not aware that they benefit from copyright ownership.²⁸ By some estimates, 40% of all creative works in existence are orphans.²⁹ Other commentators suggest that ‘most works are orphan works’.³⁰ It is clear that orphan works make up a very significant portion of the cultural works available online and in the collections of libraries and archives.

What is the orphan works problem?

Simply put, the orphan works problem is the sheer cost – in both time and money – involved in licensing orphan works, which is highly disproportionate to the value of their potential cultural, historical, and commercial uses. A UK study of orphan works’ use among 503 public sector organisations found that 89% of the organisations surveyed were affected at least occasionally by the orphan works problem, with 26% affected either frequently or in everything they do.³¹

The inaccessibility of orphan works’ owners for licensing negotiations poses problems for the preservation of works (because fragile or deteriorating works cannot be copied), for their use in education (because they cannot be displayed online or digitised en masse), and for their use for commercial purposes (because they cannot be republished or used to make derivative works). Because more recent works tend to be more commercially popular, the fact that a recent survey of 2,300 randomly selected new books for sale on Amazon.com found there were more available from the 1880s than from the 1980s clearly indicates that orphanhood damages markets for works.³²

Some commentators argue that there are two or even three distinct parts to the orphan works problem, classified according to the nature of the actor seeking to use the works, the number of works sought to be used, and the types of use to which the works are to be put. Ian Hargreaves, the author of Digital Opportunity, a recent British report on copyright reform, suggests that mass digitisation by libraries and archives should be treated differently from licensing of discrete works by individuals.³³ Dutch academic Stef van Gompel argues that the orphan works problem is actually a chimera, in the classical sense of a beast with three heads; being those of a lion (mass digitisation projects), a serpent (transformative and derivative uses), and a goat (small-scale incidental uses).³⁴ She proposes different remedies for each problem, which I will discuss below. First, however, I will examine a typical orphan works problem: an internet meme.

Case Study: All Your Base Are Belong To Us

Internet memes are a unique example of early 21^st-century internet culture, and as such, they will be seen to have increasing cultural value in coming years. An internet meme is ‘a piece of culture, typically a joke, which gains influence through online transmission.’³⁵ Unfortunately, because memes are almost always composed of hundreds or thousands of anonymous contributions to the common comedic stock, they are quickly orphaned.

The early meme ‘All Your Base Are Belong To Us’ provides an interesting example of this phenomenon.³⁶ In 1991, Japanese game publisher Toaplan released a translated version of its game Zero Wing.³⁷ As with many games, it quickly lost its commercial value, and when Toaplan declared bankruptcy in 1994 the game seemed to have been lost.³⁸ In 1998 internet users discovered the game’s poorly translated English subtitles and made a short animated movie of its opening sequence. The broken English phrase ‘All Your Base Are Belong To Us’ from this sequence was adopted by users of the Something Awful internet forums and quickly spread widely throughout the internet.³⁹

It is not clear whether the copyright in Zero Wing was transferred elsewhere when Toaplan was declared bankrupt, and consequently the probability that the game is orphaned is very high. To muddy the waters further, each instance of the meme is a derivative work based on the animation, itself a derivative work from the game, and because many users of the Something Awful forums choose not to reveal their identities, most instances of the meme are themselves orphans. Consequently, a researcher seeking to document the ‘All Your Base’ phenomenon legally would encounter orphan works at every turn. Unless a defence to infringement were available, such research would clearly not be practicable.

Fair dealing and fair use

In many jurisdictions, the best defences available for such uses of orphan works are ‘fair dealing’ or ‘fair use’ rules. Although their breadth varies from state to state, such rules generally provide that certain limited uses of copyrighted materials do not result in legal culpability, even where they would otherwise be infringements of copyright.

The international context

The Berne Convention provides in articles 10 and 10bis that fair use protections may be introduced for copying in the course of quoting works, using works by way of illustration in teaching materials, and reproducing portions of works in the course of news reporting. In article 9(2), it provides that further exceptions may be made if they comply with what is now known as the ‘three step test’:

It shall be a matter for legislation in the countries of the Union [signatories to the Convention] to permit the reproduction of [literary and artistic works protected by this Convention] in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.⁴⁰

The same test can be found in both TRIPS and the WIPO Copyright Treaty, which means that any domestic exception to any portion of international copyright law must pass it in order to be valid.⁴¹ However, the three steps are somewhat vague, with the result that the test is inherently flexible.

Fair use in the United States

The USA’s rule is the best known iteration of fair use. It has never been challenged for non-compliance with the three-step rule, but submissions to the ALRC inquiry argued that its compliance was ‘not without controversy.’⁴² It is codified in § 107 of the Copyright Act of 1976:

the fair use of a copyrighted work… is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.⁴³

These four ‘fair use factors’ are open-ended, and thus whether a use of a work is fair must be considered on a case-by-case basis.⁴⁴ Consequently, some US-based commentators argue that fair use is capable of expanding and acting as a partial solution to the orphan works problem.⁴⁵ In any case, US copyright academic Lawrence Lessig argues that the enormous expansion of our ability to make copies of copyrighted works means that fair use now carries an ‘extraordinary burden… that [it] never before had to bear.’⁴⁶

Fair dealing in Australia

Australia’s ‘fair dealing’ provisions are more limited than the broad and flexible fair use provision available in the United States. Our fair dealing exceptions provide that certain uses of copyrighted material which would otherwise be infringements are permitted in particular circumstances. Those circumstances are generally non-commercial uses such as research,⁴⁷ review,⁴⁸ satire,⁴⁹ and news reporting.⁵⁰

However, one of the proposals contained within the ALRC’s Discussion Paper is the creation of a fair use defence similar to that available in the US, along with the repeal of many of our fair dealing provisions.⁵¹ If this recommendation is followed, fair use will probably follow the US provision in expanding to cover some – but not all – of the situations in which orphan works are sought to be used.

Institutional exceptions to copyright law

Even where fair use is available, occasionally the law differentiates between users. Certain users, including cultural institutions such as libraries and archives, tend to enjoy wider exemptions than private individuals. This approach has recently been adopted in the EU in relation to the management of orphan works, as will be discussed below.

The failure of section 200AB

In 2006, this principle was applied in Australia, when the Copyright Act was amended to include a new section intended to provide a flexible copyright exception which would enable cultural institutions to use copyrighted materials, including orphan works, for socially beneficial purposes. The exception, contained in s 200AB only applies if the use of the copyrighted material is:

• made by or on behalf of the body administering the library or archive;

• made for the purposes of maintaining or operating the library or archives; and

• not made partly for the purposes of the body obtaining a commercial advantage or profit.⁵²

Although s 200AB was enacted with the intention that it would protect museums and other cultural institutions, submissions to the ALRC report indicate that it has hardly been used.⁵³ A report on orphan works by the Commonwealth Attorney-General’s Department also found that despite the existence of s 200AB, users would risk litigation if they were to use orphan works for ‘research purposes, transformative works or other creative purposes, broadcasts…, or personal or community use’, and that ‘some cultural organisations continue to be reluctant to rely on the broad wording of section 200AB before it is tested before a court.’⁵⁴ The requirement that the section not be used commercially may also have caused difficulties for institutions accustomed to collecting revenue from their exhibitions. In its Discussion Paper, the ALRC recommends that s 200AB be repealed, as it is ‘not working appropriately and effectively in the digital environment’.⁵⁵

Rather than shoulder these risks themselves, cultural and academic institutions sometimes elect to enter into commercial arrangements, such as Google Books, which enable them to preserve and make new uses from their holdings. The dispute between the US Authors Guild and Google over the latter’s scanning of millions of books is one of the major reasons orphan works have recently entered the law reform spotlight.

Case Study: Google Books

In 2004, Google entered into agreements with a number of major research libraries in the United States to scan and digitise their holdings and make ‘snippets’ of the scans available online.⁵⁶ Many of the books scanned were still under copyright, and because Google did not contact the owners of copyright in the books or otherwise seek their permission to make the scans, the Authors Guild brought a class action against Google in 2005 alleging that the scanning programme was a breach of its members’ copyright.⁵⁷ Google argued that the programme constituted fair use.

The parties negotiated a draft settlement agreement, which would have allowed Google and the Authors Guild to share revenues derived from orphan works, but it was rejected by the court on 22 March 2011.⁵⁸ In a perceptive article written before it was struck down, Randal Picker argued that the proposed settlement, if allowed to proceed, would have had the effect of appropriating orphan works and turning them into ‘a kind of private public domain’.⁵⁹

Indeed, in his opinion rejecting the settlement, Judge Denny Chin referred explicitly to the fact that it would bind owners of orphan works without their consent, and indicated that he would have been more willing to accept an ‘opt-in’ version of the settlement, noting the significant differences between the case and an ordinary class action:

While it is true that in virtually every class action many class members are never heard from, the difference is that in other class actions class members are merely releasing ‘claims’ for damages for purported past aggrievements. In contrast, here class members would be giving up certain property rights in their creative works, and they would be deemed—by their silence—to have granted to Google a license to future use of their copyrighted works.⁶⁰

Interestingly, on 14 November 2013 Chin handed down an opinion that Google’s scanning programme constituted fair use under US legislation because it provides ‘significant public benefits’.⁶¹ The Authors Guild has indicated that it will appeal this decision.⁶² Nevertheless, it goes some way towards confirming the view discussed above that fair use is capable of ameliorating the orphan works problem, at least in respect of mass digitisation programmes.

Existing orphan works systems

The Google books litigation shows the urgency of the orphan works problem, but unfortunately only a small number of countries and supranational bodies have dealt with it to date. In this section, I discuss the three distinct systems established by Canada, the Nordic states, and the EU.

The Canadian model: centralised licensing

Canada has had legislation in place for dealing with orphan works since 1988. In this system, a specially constituted body called the Copyright Board of Canada is empowered to grant non-exclusive licences and charge royalties for the use of orphan works by applicants who have made reasonable but unsuccessful efforts – also known as a ‘diligent search’ – to locate the copyright owner.⁶³

The Canadian system is frequently criticised for its expense and inefficiency. In 2010, Jeremy de Beer and Mario Bouchard undertook a systematic review of its decisions, finding that in the Board’s 22 years of operation (to 2010) it had opened files for 441 licence applications relating to 12,640 different orphan works.⁶⁴ Licences were granted in response to around half of these applications, with the total royalties payable under all licences amounting to around C$70,000.⁶⁵

When the US Copyright Office undertook an exhaustive review of the orphan works problem in 2005, it received a submission from Lawrence Lessig on behalf of Save the Music and Creative Commons which criticised the Canadian system, arguing that

because the panel engages in case-by-case adjudication, the standards for what constitutes a ‘reasonable’ search, and the fee set for the license, vary. The process is time-consuming and unpredictable. As a result, it is rarely used.⁶⁶

The ALRC has also cast doubt on whether such a centralised system can be sufficiently efficient and cost-effective, citing de Beer and Bouchard’s study and the small number of licences issued over a long period of time. Given the scale of the orphan works problem, a slow, expensive, administratively burdensome system which still leaves the vast majority of works unusable is clearly not the best solution.

The Nordic model: extended collective licensing

Denmark, Norway, Finland, Sweden, and Iceland have all introduced orphan works systems on an ‘extended collective licensing’ model: copyright collecting societies are empowered by legislation to represent the owners of orphan works in their field and issue non-exclusive licences to users of the works.⁶⁷ No diligent search is necessary, and rights owners are able to opt out of the system and negotiate separate licences if they wish.⁶⁸

Hungary has established a similar system, but licences are issued by the Patent Office rather than a collecting society.⁶⁹ The Nordic model has also been proposed as a solution in Romania, the Czech Republic, and France.⁷⁰ However, the ALRC does not favour it as a general solution in Australia, suggesting that extended collective licensing is inherently problematic:

Even where the money is held in an escrow account and redistributed to other copyright holders [via collecting societies], the recipients may have no great connection with the orphan work. This does not appear consistent with the purpose of copyright; to remunerate the author of the work and provide an incentive to create.⁷¹

Nevertheless, it is often argued that large cultural and academic institutions are relatively risk-averse, and thus they may prefer collective licensing for the legal certainty and elimination or reduction of the diligent search burden that it offers.⁷²

The EU Directive: diligent search for cultural institutions

The European Union recently issued a Directive on permitted uses of orphan works, which provides that making orphan works available to the public and reproducing them for the purposes of ‘digitisation, making available, indexing, cataloguing, preservation, or restoration’ is permitted without paying royalties after a diligent search is completed.⁷³ However, this permission is only extended to ‘publicly accessible libraries, educational establishments and museums, … archives, film or audio heritage institutions and public-service broadcasting organisations’ and only for uses of the works which are ‘related to their public interest missions’.⁷⁴ In September 2013 the German upper house agreed on draft legislation to implement the Directive.⁷⁵

The limitation in the scope of the directive means that it should be understood more as an extension of fair use principles than a truly wide-ranging attempt to tackle the problem of orphan works. Given the magnitude of the problem, this seems to be an insufficient approach. It prioritises cultural and public interest purposes over commercial ones, with the result that a company or private individual seeking to use an orphan work made available by a public institution under the Directive will face the same obstacles they would have encountered beforehand.

Italian copyright lawyer Eleonora Rosati argues that the Directive’s silence on commercial projects like Google Books shows that it has failed to address one of the main reasons an EU-wide initiative was needed: namely, the need to keep the EU commercially competitive.⁷⁶

Proposed models

A wide range of reform options which might solve the orphan works problem have been proposed in various jurisdictions. This section will discuss reforms proposed in Australia, the United Kingdom, and the United States.

Australia: limitation of liability

In its 2012 report on orphan works, the federal Attorney-General’s Department canvassed seven reform options, which it labelled from ‘A’ to ‘G’.⁷⁷ The options can be summarised as follows:

A: Full statutory exception: Copyright infringement remedies would not be enforceable where an owner cannot be found. The exception could be made conditional upon efforts being made to trace ownership, or it could be limited to certain kinds of work.

B: Limited statutory exception/‘reasonable enquiries’ defence: Limiting the remedies available to owners of orphan works if the users of those works had made efforts to trace their ownership.

C: Canadian statutory licensing arrangement: A version of the Canadian system discussed above, with the role of the Copyright Board played by our Copyright Tribunal or the Federal Circuit Court.

D: Extended licensing arrangement: Similar to the Nordic model discussed above: either a legislative extension of collecting societies’ responsibility, or a system whereby collecting societies indemnify users against claims from re-emerging rights holders.

E: Develop copyright infrastructure: A voluntary or compulsory copyright registration scheme.

F: Clarification of existing provisions in the Copyright Act: Clarification of s 200AB and other potentially ambiguous sections of the Act relevant to orphan works.

G: Combination of schemes: Some combination of the first six options.⁷⁸

The Department ultimately declined to recommend a solution while the ALRC review was underway. The ALRC’s recommendation in its Discussion Paper is as follows:

The ALRC proposes that the Copyright Act 1968 (Cth) be amended to provide that remedies available for copyright infringement be limited where a defendant establishes that the work in question was an orphan work, and a ‘reasonably diligent search’ was conducted for the rights holder and the rights holder was not found.⁷⁹

This approach is a variant of Option B from the Attorney-General’s Department report, and is broadly similar to the proposed approach in the United States, discussed below. It is a simple approach to implement, and – given the very low chance that a rights owner will re-emerge – a far more efficient one than any licensing scheme. However, there remains the problem of enabling appropriate mass digitisation of orphan works where conducting diligent searches on the entire collection is impractical.

In line with her division of the problem into three parts, discussed above, van Gompel suggests a collective licensing model be used for mass digitisation projects, and a diligent search-based model for derivative and small scale uses.⁸⁰ Despite its apparent opposition to extended collective licence systems in principle, the ALRC has recommended that collecting societies be empowered to offer them for mass digitisation projects.⁸¹

United Kingdom: statutory licences

The Digital Opportunity report proposes a licensing system be implemented to deal with orphan works.⁸² In line with Ian Hargreaves’ division of the problem into two parts, he proposes two parallel solutions: ‘extended collective licensing for mass licensing of orphan works, and a clearance procedure [involving the issuing of a licence by the government] for use of individual works.’⁸³ He also proposes that a work may only be treated as orphaned where it cannot be found ‘by search of the databases involved in the proposed Digital Copyright Exchange’ – a form of diligent search.⁸⁴

The United Kingdom parliament recently passed the Enterprise and Regulatory Reform Act 2013. That Act inserts a new s 116A into the Copyright, Designs and Patents Act 1988 (UK) which empowers the government to permit an independent body to license orphan works, an arrangement largely in accordance with Hargreaves’ proposal.⁸⁵ It also provides that a work may only be classified as an orphan if its owner is not found after a diligent search compliant with regulations has been made.⁸⁶ Those regulations have not yet been formulated.

United States: limitation of liability

On completion of its review of the orphan works problem in 2006, the United States Copyright Office delivered a report.⁸⁷ That report recommended that Congress enact a provision to the following effect:

if the user has performed a reasonably diligent search for the copyright owner but is unable to locate that owner, then that user should enjoy a benefit of limitations on the remedies that a copyright owner could obtain against him if the owner showed up at a later date and sued for infringement.⁸⁸

Although three bills in the terms suggested by the Office were introduced to Congress between 2006 and 2008, none passed.⁸⁹ Nevertheless, they are academically interesting as they contain differing approaches to the problems associated with orphan works and hint at the directions future US laws may take.

Criticism of proposed approaches

Systems based on a limitation of liability are often criticised for making the recovery of compensation by re-emerging rights holders unnecessarily legalistic and costly. This is a serious concern, which should be addressed in Australia before it becomes a practical impediment for rights holders. One way this could be done is by implementing specialised, low-cost procedures for claiming compensation in the Federal Circuit Court.

Rights holders also criticise limited liability solutions on the grounds that they will encourage the royalty-free use of orphan works, ostensibly diverting potential licence sales from non-orphaned works and thus depressing their value. However, these arguments discount or ignore several important factors.

Firstly, there is a real chance that an orphan work may be out of copyright in any case: as discussed above, a lack of information about ownership often goes hand in hand with a lack of information about the date of publication or creation. Secondly, there are costs (sometimes considerable ones) involved in performing diligent searches, in comparison with which a streamlined commercial licensing service is capable of offering significant time and even monetary savings. Thirdly, there is no guarantee the owner of the orphan work, if she could be contacted, would have required any payment for the use of her work.

In any case, artificially inflating the prices of orphan works in order to protect the value of non-orphan works would arguably do no more than replace one form of market failure with another. Hargreaves recognises this, suggesting that his proposed licensing system

should also not impose inappropriate costs, particularly on use of materials which were not created for commercial purposes… in most cases, the fee for use of orphan works would be nominal… this is a good example of a case where wider economic interest outweighs the perceived risk to rights holders.⁹⁰

It will be interesting to see whether the independent authority established in accordance with the Enterprise and Regulatory Reform Act will follow this logic.

The diligent search standard

Given the general acceptance of the diligent search as the basic threshold for the limited liability, extended collective licensing, and statutory licensing models, the nature of that diligent search has become an important area of debate.

Wisely, the ALRC suggests that the definition of a ‘diligent search’ should remain flexible and vary with the nature of the work, and notes that ‘a reasonably diligent search in 2013 may not be sufficiently diligent in 2023’, although it does recommend that legislation should ‘provide for a number of factors that may be considered’.⁹¹ There has already been some instructive discussion here and overseas of how a diligent search might be defined.

The Australian approaches

The Attorney-General’s Department report briefly discusses the potential elements of a diligent search requirement.⁹² It suggests four general options for a diligent search (which it refers to as a ‘reasonable inquiry’):

1. A test specified in the Copyright Act, modelled on s 113C, ie ‘a person must be satisfied, after reasonable investigation, that the owner of copyright cannot be identified or contacted’.
2. A ‘reasonable enquiries’ test that is acceptable to many countries and that can form the basis of a multilateral treaty to standardise searches for owners of orphan works.
3. A ‘reasonable enquiries’ test, with steps based on industry practice for locating copyright owners and specified in regulations to the Copyright Act.
4. A requirement that users (or specified categories of users, such as archives) be obliged to issue a ‘prescribed notice’ before using an orphan work.⁹³

Ultimately, it seems likely that some combination of the above options will be used. Option ‘a’ seems insufficient in that its wording suggests an element of subjectivity, and leaves the nature of ‘reasonable investigation’ undefined.

Although option ‘b’ would be a better approach in the long term, since it contemplates an international standard, there is a danger that the resultant test might be insufficiently flexible to remain relevant as the available technology changes. Berne’s original prohibition on formalities, discussed below, serves as a cautionary example of the dangers of enshrining short-term solutions to temporary technological problems in long-term international agreements.

Option ‘c’ seems consistent with option ‘b’, and has the benefit of retaining flexibility as industry practices change. Delegated legislation seems an appropriate level for defining a diligent search, as indicated by the UK parliament’s choice of regulations for this task, although care should be taken to tailor the requirements to the classes of work in question. This might be done through consultation with relevant collection societies or other interested bodies, or simply through having regard to ‘guidelines or industry practices’, as recommended by the ALRC.⁹⁴

Finally, option ‘d’ seems somewhat impractical and potentially wasteful. Other orphan works systems which prescribe the issuing of notices, such as the Hungarian system, do so in formalistic ways, like advertising in newspapers, which have a very low chance of yielding results.⁹⁵ Individuals seeking to use orphan works are also unlikely to be willing to go to the effort of issuing notices for incidental uses, such as those involved in making a meme or other transformative work for distribution online. Given the ease of searching for oneself online, the requirement to provide attribution where possible should serve as notice to any rights holder sufficiently interested in protecting his or her work, and would cost less in time and effort than issuing notices which are unlikely to be seen by their target in any case.

One important gap relates to large institutions and their digitisation programmes. Where a cultural or academic body plans to digitise a large volume of works, even complying with relatively simple search requirements may not be practically possible – as, for example, if the National Library of Australia planned to digitise a million books, since evidence suggests that even an attenuated diligent search may involve at least several hours’ work.⁹⁶ However, the definition of a ‘reasonable’ diligent search may be phrased such that it varies according to the volume of works sought to be used.

The British Library and the United Kingdom Libraries and Archives Copyright Alliance has suggested that a ‘scalable search’ may be the solution to the dilemma of diligent searches in the context of large digitisation programmes.⁹⁷ A scalable search is where a user conducts diligent searches upon a representative portion of the works, and is then permitted to presume that the remainder of the works are orphaned.⁹⁸ However, it seems more likely that an extended collective licensing solution will be adopted, given its support among industry, the ALRC’s grudging acceptance, and the numerous precedents overseas.

The US approach

Each of the bills which failed to pass the US Congress contained a basic outline of the requirements for a diligent search. The latest of the three, the Shawn Bentley Orphan Works Act of 2008 (which was based on the previous two bills) provided that a diligent search would involve, at a minimum: searching Copyright Office records; using technological tools, printed publications, and ‘where reasonable, internal or external expert assistance’; and using ‘appropriate databases’ available online and elsewhere.⁹⁹

For a system ostensibly aimed at reducing transaction costs, the requirement to consult printed publications seems a little strange. In practice, such a requirement would have disproportionately affected users with lower levels of research skills and those located in remote areas. A better approach was contained in the second bill, the Orphan Works Act of 2008, which required only that users’ searches be compliant with ‘best practices’ drawn up by the Register of Copyrights.¹⁰⁰ As in the UK system mentioned above, drafting diligent search standards at the delegated legislation level seems likely to give them the necessary level of flexibility to keep up with technological changes.

The EU approach

The EU’s Directive on orphan works gives the most detail on the requirements for a diligent search of any official source so far. Article 3(2) provides as follows:

The sources that are appropriate for each category of works or phonogram in question shall be determined by each Member State, in consultation with rightholders and users, and shall include at least the relevant sources listed in the Annex.

The Annex sets out lists of sources for four categories of work: ‘published books’, ‘newspapers, magazines, journals and periodicals’, ‘visual works’, and ‘audiovisual works and phonograms’.¹⁰¹ Diligent searches for works in any of these categories are required to include at least legal deposits, library catalogues, and databases of relevant collecting societies. Each category includes a number of additional information sources. Interestingly, Eleonora Rosati criticises the Directive for giving too little guidance on the nature of a diligent search, calling it ‘extremely vague’.¹⁰² The proposed German legislation implementing the Directive requires institutions to document their searches and forward the information to Germany’s Patent and Trade Mark Officer.¹⁰³

Criticism of proposals

One notable problem with many proposals for diligent searches is that they may tend towards exhaustiveness rather than mere diligence, through the use of onerous technical standards. This could have the unintended result that conducting diligent searches may only be practically open to institutions with the resources to either conduct searches of multiple different sources, or subscribe to search services which aggregate them. Whether proposed diligent search requirements might be beyond the reach of natural persons with ordinary levels of technical skill is a serious question which should be considered in any scheme.

On the other hand, it might be expected that with the increasing sophistication of search algorithms, combined with the advent of machine-readable licensing information championed by the Creative Commons movement, diligent searches may actually become easier to perform, and perhaps even automated to a large degree.¹⁰⁴ In this case, the diligent search requirements should be adjusted to match the capacities of the available search software.

The re-emergence of the rights holder

On the rare occasion that the owner of an orphan work re-emerges after it has been used by another party, two difficult questions arise: firstly, what compensation (if any) the rights holder is entitled to; and secondly, whether the rights holder should be able to prevent further derivative use of their work.

How much compensation should be granted?

Each of the failed US bills provided that a re-emerging owner would be entitled to ‘reasonable compensation’ only, defined as:

The amount on which a willing buyer and willing seller in the positions of the infringer and the owner of the infringed copyright would have agreed with respect to the infringing use of the work immediately before the infringement began.¹⁰⁵

In jurisdictions without punitive sanctions for breaches of copyright like those available in the US, a court may well have ordered no more than compensatory damages in any case where the user had made good faith efforts to find the owner of the work. In other words, legislation whose only effect is limiting the available remedies to reasonable compensation may be less radical than it appears.

On the other hand, Eleonora Rosati argues that the vagueness of the EU Directive ‘may result in Member States adopting diverging approaches’ to the right to compensation which would lead to ‘race-to-the-bottom scenarios’, since the EU member states would be competing with one another to attract investment in commercial programmes like Google Books.¹⁰⁶ Although this is a possibility, it seems likely that pressure from rights holders will counterbalance the risk.

Can the rights holder prevent derivative use?

Where a user has made a derivative work based on the orphan work, the re-emergence of the rights holder can cause significant problems. The proposed German legislation provides that a re-emerging owner will be able to stop use of the work immediately.¹⁰⁷ This is a major concern for individuals and institutions wishing to make derivative uses of orphan works, since it may not always be possible to neatly extract a previously orphaned work from the derivative work in which it is embedded.

The failed US bills were fairer on this point, providing that where the user compensates and provides reasonable attribution to the rights holder, a court cannot order injunctive relief preventing her from continuing to prepare or use a derivative work based on the formerly orphaned work.¹⁰⁸ The ALRC’s Discussion Paper does not consider this issue, but a similar protection should be implemented here.

My proposals

A number of further steps need to be taken at both the international and domestic levels before the orphan works problem can be sufficiently mitigated. These include amending problematic areas of domestic law which lead to the creation of formalities, working to protect rights holders who have taken reasonable steps to prevent their works from becoming orphaned, creating international standards by which orphan works can be marked and attributed, and reintroducing formalities to filter non-commercial works out of the copyright system.

Prevent works from becoming orphaned

Orphan works should not be seen as a problem confined to copyright law. As discussed above, works are often orphaned when companies are bankrupted, or when copyright owners die without making their heirs aware of the extent of their works subject to copyright. A significant number of works could be diverted from orphanhood through relatively minor changes to corporations and probate law which target the deregistration of companies and the death of natural persons as logical points at which to consider the surrender of commercially worthless copyrights.

This approach is workable under international law because it does not fail the three step test: it merely prompts company officials or testators to at least consider how copyrighted works are to be dealt with. Since at this stage many of the works in question will be quite old, statistically speaking they will have lost most of their commercial value – if they had any in the first place.¹⁰⁹ It might be expected, then, that many company officials and testators will choose to simply dispose of these unnecessary copyrights by gifting them to the public domain.

Change company deregistration

The process for deregistering a company could require the responsible officer to indicate whether the company chooses to surrender its residual copyrights to the public domain, and if not, to whom they are to be transferred. Such corporate records would establish an invaluable paper trail for future researchers, potentially providing legal certainty in cases where out-of-commerce works have been positively consigned to the public domain.

Consider copyright in probate law

A similar approach could be taken for probate law. This would involve educating lawyers to explicitly provide for copyright when drafting wills: they could encourage their clients to enumerate specific copyrighted works which they intend to devise to particular beneficiaries, and provide that all of the testator’s other copyrighted works are gifted to the public domain.

Protect metadata online

More can also be done to protect rights holders who have taken reasonable steps to prevent their works from becoming orphaned. This is a particular concern among the photography community, which has long complained that social media sites remove identifying information from photographs as a matter of course.¹¹⁰ The World Wide Web Consortium, the internet’s governing body, has already created technical frameworks which allow such copyright information to be attached to files as ‘metadata’, and it could easily issue revised standards which require that this metadata be preserved when photographs and similar works are transmitted across the internet.¹¹¹ This would help eliminate the systemic problems that are currently causing works such as photographs to be orphaned by the millions.

Design and mandate an orphan works mark

Institutions or individuals relying on orphan works exemptions should be required to display a mark on any works they distribute which make use of or are themselves orphan works, along with any attribution information gathered during their diligent search. It is important that the orphan works symbol be simple, universal, and capable of immediate recognition, like the copyright symbol. Both of the failed US orphan works bills from 2008 contained a provision requiring any use of orphan works under the section to bear ‘a symbol or other notice of the use of the infringing work, the form and manner of which shall be prescribed by the Register of Copyrights’.¹¹² This, perhaps more than anything else, would help re-emerging rights holders identify their works and claim compensation where appropriate.

Reintroduce formalities

Until relatively recently, many countries made the grant of copyright contingent upon compliance with legal and bureaucratic formalities. Lawrence Lessig argues that formalities were based on ‘the sensible understanding that for most works, no copyright was required.’¹¹³ Unfortunately, modern copyright law seems to have forgotten this basic proposition.

Berne’s prohibition on formalities

The Berne Convention originally permitted states to make the grant of copyright contingent upon formalities such as registration and renewal. However, the practical difficulties involved in satisfying them in an era before the internet – ‘requiring an author (or publisher) to inform himself about the requirements of the law in countries with which he has no familiarity, and then to obtain and fill out forms in a variety of languages’ – proved insurmountable.¹¹⁴ As a result, the states party to Berne passed an amendment in 1908 which shifted the treaty from ‘a limited acceptance… to a broader proscription’ of the imposition of formalities on foreign authors.¹¹⁵ That amendment, contained in art 5(2) of the current version of Berne, provides that:

[t]he enjoyment and the exercise of these rights shall not be subject to any formality; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work. Consequently, apart from the provisions of this Convention, the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be governed exclusively by the laws of the country where protection is claimed.¹¹⁶

Although states remained free to impose formalities on their own citizens after the 1908 amendment, they were understandably reluctant to open themselves to charges of placing their nationals at a competitive disadvantage compared with foreign authors.¹¹⁷ Formalities withered, leaving us with a copyright system which had been radically reshaped – almost by accident.

Formalities are now possible and practical

The important point here is that Berne’s opposition to formalities was grounded in practical rather than theoretical considerations.¹¹⁸ There is a strong argument that these practical problems are capable of solution in a centralised, internet-based formalities system.¹¹⁹ Christopher Sprigman recommends the introduction of ‘new-style’ formalities, which he says should consist of a ‘formally voluntary’ online registration system paired with a low-value ‘default’ licence which would apply to the works of non-compliant rights holders.

Renewal formalities, such as the system suggested by British economist Dennis Khong whereby copyright must be renewed every ten years, are another option.¹²⁰ Studies have shown that when renewal formalities were in existence, on average only 15% of rights holders renewed their copyright.¹²¹ As a result, we can be confident that if they are forced to choose between renewing copyrights over commercially valueless works and letting those works lapse into the public domain, many rights holders will choose the latter.

Formalities and Creative Commons

The present popularity of Creative Commons licences is proof that many rights holders do not wish to exercise exclusive rights over their works. As of December 2010, the organisation estimated that more than 400 million works had been published under Creative Commons licences, with around 40% of these licences classified as ‘open’ (a category of licence which must permit derivative and commercial use).¹²² Although this is a self-selecting group and thus a less than perfect representation of average copyrighted works, its size does indicate that a significant number of rights holders would not register their works for copyright if formalities were reintroduced: indeed, it shows us that thousands of creators want to see the balance of copyright law tip back towards a freer, more efficient, and more lucrative commons.

Conclusion

Approaches to the orphan works problem vary significantly between jurisdictions. However, a number of common approaches are beginning to emerge, including extended collective licensing schemes, centralised licensing bodies, and limitations on liability contingent upon the completion of a diligent search. While each approach has its advantages, they are all aimed at symptoms rather than the fundamental cause of the problem: the unwanted and unnecessary copyrights which earlier versions of the law successfully eliminated. States should move quickly to amend the Berne Convention, reintroduce formalities, and open the floodgates to the millions of creative works waiting to enter and refresh the public domain. The radical changes affecting copyright challenge us to find equally radical solutions.

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