The UK Government, in its response to the Hargreaves Review of the country’s intellectual property framework, has set what appears to be a cracking pace for the introduction of certain reforms

Australia will watch the recent proposals from the UK Government keenly, as there is a push here, as in Europe and North America, to find a legislative solution to the problem of so-called ‘orphan works’. These are copyright works (books, letters, photographs, films etc) whose owners cannot be located by those wanting to use the works in some way, particularly collecting institutions such as libraries, museums and archives

The report, Digital Opportunity: A Review of Intellectual Property and Growth, by Professor Ian Hargreaves, divides the issue into two distinct categories – use of individual orphan works, and mass licensing of collections which include some orphans: • Licensing individual works: the Report states at page 39, “That would involve Government granting an authorisation to deal in a specific work where the copyright owner has not been found or identified after a diligent search. Should an owner later come forward, future use of that work from that point would be subject to negotiation, but there would be no liability for past use beyond any licence fee set by Government or its appointed agent.” • Mass licensing: In the case of licensing a collection of copyright works with some orphans, Hargreaves recommends an extended collective licensing scheme based on the Nordic model. Following a diligent search (to ensure the supposed orphans are not in fact owned and opted out of the collective licensing scheme), a licence would be issued by the appointed collecting society. Any fees paid would be held by the collecting society until the owner was identified, or a reasonable period of time elapsed, in which case the monies would be used for social or cultural purposes

While Hargreaves recommends a “nominal” fee for the use of orphan works in most cases, the UK Government has opted for a different approach by advocating “licensing at market rates for commercial use” of orphan works. This variation is at least in part a response to the concerns of photographers and visual creators, whose works are most vulnerable to being ‘orphaned’ through distribution on the internet, and who worry that an orphan works scheme may provide an easy ‘out’ for commercial organisations looking to use works without payment

The UK’s Association of Photographers, while supporting most of the Government's Hargreaves reforms, has stated “we, and others, have been against [licensing of orphan works] from the start as it undermines the creators’ marketplace and makes a mockery of existing licensing arrangements.” Concern over commercial use is not confined to UK photographers. In May this year the European Commission’s proposal for a Directive on uses of orphan works limited the proposed uses to certain organisations (e.g. libraries and archives) and to cultural and educational uses. By contrast, the orphan works scheme that has existed for some years in Canada does allow for commercial use (as do proposals for orphan works reform in the United States)

By contrast, in Australia none of the exceptions in Australian copyright law allow 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. And in some cases, an exception may be more likely to apply if the work is an orphan work – for example, section 200AB (for educational institutions, libraries, collecting institutions and people with a disability). Australian governments of both stripes have had orphan works reform on the agenda (since 2006) and it is likely that this will be one of the issues addressed by the Attorney-General’s proposed review of copyright by the Australian Law Reform Commission

To read more about this story go to: For inquiries relating to publishing and copyright law please contact Adam Simpson.