OK I guess I am breaching copyright by posting this in it's entirety but ....
I think it may be of interest to those of us interested in copyright protection of our images. ( and that should be all of us )
Orphan works: proposed changes in the US & issues for Australia
by admin � last modified 2008-05-28 14:08
28 MAY 2008
download as pdf
There are two bills before the US Congress that would limit the consequences of using an 'orphan work' without permission, and may therefore encourage the use of orphan work. Much concern has been expressed in the US, particularly by visual artists and photographers, about the implications of these proposed changes. In this information sheet, we look at the issues and explain why, in our view, the proposed changes would have a limited effect on Australian copyright owners.
We have assumed that readers of this information sheet are familiar with the principles of copyright law, as set out here.
The problem with orphan works
An 'orphan work' is a work that is protected by copyright but whose owner cannot be identified and/or located. This can raise problems for people wanting to use the material, as you can't get permission if you can't find out who the copyright owner is, or you can't contact them. If you're in this position, and can't rely on an exception, using the material will infringe copyright and you risk legal action if the copyright owner finds out.
Some users of copyright material have long argued that there should be a mechanism by which they can use an orphan work, without risk of being sued for infringement, if they can demonstrate they have taken appropriate steps to try and identify or locate the copyright owner. For example, many museums and similar organisations would like to make digital repositories of their collections or make them available online, but in many cases it is difficult or impossible to identify the owner of copyright in an old or ephemeral artefact.
Some copyright owners, on the other hand, are concerned that orphan works legislation could affect their ability to control their work and to earn a living from it. This is especially the case for photographers and creators of other images, films and animations, since such material can easily become orphaned, especially if it is distributed over the internet. These concerns have been widely publicised as a result of the proposed changes to US law.
Governments in several countries have looked at this issue and introduced or proposed ways to deal with it. Canada introduced a scheme in 1988 under which people can apply to the Copyright Board for a licence to use works whose owner they cannot find. In 2006, the Gowers Report on Intellectual Property, in the United Kingdom, recommended that an orphan works provision be included in a European Union harmonisation directive.
Issues governments need to address in such policies include:
How can you make sure the scheme only applies to works for which the copyright owner genuinely cannot be found (and is not misused to avoid paying licence fees)?
What steps should the user have to take to be able to rely on an orphan works scheme?
What should happen if the copyright owner becomes aware of the way his or her material has been used and wants to stop it or be paid compensation?
For a detailed discussion of issues surrounding orphan works, and a comparison of other countries' approaches, see Ian McDonald's article 'Some thoughts on orphan works'.
What's happening in Australia?
There are many exceptions to copyright infringement in the Copyright Act. None of them allows the use of a work without permission merely because it is an orphan work. There is an exception that allows the publication of old unpublished orphan works held in libraries, provided certain conditions are met. In some cases, an exception may be more likely to apply if the work is an orphan work. This can be the case for section 200AB, an exception available to educational institutions, libraries, collecting institutions and people with a disability.