orphan works

The Australian government has issued a consultation paper on copyright modernisation: Copyright modernisation consultation paper.

The three main issues on which consultations are being undertaken are:

1. flexible exceptions
2. contracting out of exceptions; and
3. access to orphan works.

The consultation paper arises from the Government’s response to the Productivity Commission’s final report into Intellectual Property Arrangements indicating that these matters required further consideration.

Following the Productivity Commission’s report, the consultation paper sets out an interesting framework for considering how to approach these matters. According to the consultation paper, the proposals “recognise copyright’s role as part of a wider intellectual property system that is:

• effective—The system should be effective in encouraging additional ideas and in providing incentives that ensure knowledge is disseminated through the economy and community.
• efficient—The system should provide incentives for IP to be created at the lowest cost to society.
• adaptable—The system should adapt to changes in economic conditions, technology, markets and costs of innovating.
• accountable—The policies and institutions that govern the system, and the way that changes are made to them, need to be evidence-based, transparent, and reflect community values.” [1]

The consultation paper proposes seven questions:

Flexible exceptions

Question 1
To what extent do you support introducing:
• additional fair dealing exceptions? What additional purposes should be introduced and what factors should be considered in determining fairness?
• a ‘fair use’ exception? What illustrative purposes should be included and what factors should be considered in determining fairness?

Question 2
What related changes, if any, to other copyright exceptions do you feel are necessary? For example, consider changes to:
• section 200AB
• specific exceptions relating to galleries, libraries, archives and museums.

Contracting out of exceptions

Question 3
Which current and proposed copyright exceptions should be protected against contracting out?

Question 4
To what extent do you support amending the Copyright Act to make unenforceable contracting out of:
• only prescribed purpose copyright exceptions?
• all copyright exceptions?

Access to orphan works

Question 5
To what extent do you support each option and why?
• statutory exception
• limitation of remedies
• a combination of the above.

Question 6
In terms of limitation of remedies for the use of orphan works, what do you consider is the best way to limit liability? Suggested options include:
• restricting liability to a right to injunctive relief and reasonable compensation in lieu of damages (such as for non-commercial uses)
• capping liability to a standard commercial licence fee
• allowing for an account of profits for commercial use.

Question 7
Do you support a separate approach for collecting and cultural institutions, including a direct exception or other mechanism to legalise the non-commercial use of orphaned material by this sector?

In a final section of the consultation paper, a number of “ongoing concerns raised by federal cultural and collecting institutions”[2] are identified for consultation. Apparently, these “arts portfolio agencies” are concerned that copyright is being used to inhibit their ability to “provide broad-based access to their collections”. The consultation paper explains:

This includes concerns over exceptions being tied to an institution’s physical location, and thus preventing offsite supply of material. At other times, exceptions permit digitisation of content but not providing digitised content to users. Some arts portfolio agencies expend a disproportionate effort on copyright due diligence, especially when identifying and locating authors of works. This can discourage institutions from digitising, promoting or providing access to their collections. As a result, copyright law may inhibit them from adopting modern cultural institution practices and engaging with Australians online. The Department notes that, at least in some cases, better online access would involve non-commercial use or the use of copyright material with low commercial significance.

Accordingly, the consultation paper questions whether the Copyright Act 1968 should be amended by:

• adding a fair dealing exception for libraries and archives, which may provide scope for ‘off-site access’ to be provided to those wishing to use and access certain digitised collections;
• expanding the scope of the current fair dealing exception for ‘research or study’ to include situations where a person has a family connection to the work;
• refining the current s 200AB flexible exception for libraries and archives, including by removing existing restrictions on the provision only applying to ‘special cases’ and where another provision of the Copyright Act could not otherwise be relied on;
• broadening the range of libraries to which document supply provisions can apply to libraries outside Australia—this would accommodate the prevalence of overseas Australians seeking access to library material.

Submissions should be provided to the Department of Communications and the Arts by 5pm on 4 June 2018.