Please sir… can I use this song?

On August 13,  the Government announced a plan to reform digital copyright laws to bring them into line with the needs of a more online Australia. While nothing has changed yet, we can expect to see some draft legislation by the end of the year.

We thought this would be a good opportunity to look at one of the topics that will be addressed in the reform, Orphan Works, which if not treated correctly can potentially expose an organization to claims of copyright infringement, even where you have tried to do the right thing.

Copyright law crash course

The basis of copyright law in Australia comes from the Copyright Act 1968 (Cth) and gives creators, artists and authors certain rights and protections over their creative outputs (or works). Without any applications or requests, copyright will automatically apply to a work if it:

  • has been committed to some kind of material or electronic form (you can’t copyright an idea);
  • was the original creation of a person – monkeys can’t hold copyright; and
  • is sufficiently creative and substantive to warrant protection – for example, often movie titles are not protected by copyright because they are not substantive enough being only one or two words.

The copyright holder has exclusive rights to any and all uses of the works, and is free to licence or assign the rights either in bulk, or in any division of the rights they wish. For example, cinema, tv, and even airline rights in a movie are often sold separately

Holding a copyright protects you from infringements such as:

  • unauthorised publication, republication or adaptation;
  • unauthorised presentation to the public;
  • unauthorised importation; and
  • unauthorised sale or renting.

There are some exceptions, for example music is covered by a statutory licensing scheme.

Generally copyright protection lasts for 70 years after the death of the creator, or after the date of first publication. After this period works enter into the public domain and can be used by anyone without permission

Orphan works

Copyright lasts for a long time, but what happens if everyone forgets who the copyright holder is, or the author cannot be tracked down? Then the works are classified as orphan works until such time as they enter the public domain.

Under current Australian law, if you cannot find the owner of copyrighted materials to gain permission, you cannot use the material. Effectively these works cannot be safely used without the risk of legal action as almost any use of a copy righted material will likely fall under one of the above protections. Under Australian law, there is no exception to copyright infringement based solely on a work being an orphan work.

The proposed new reforms, if passed, would offer a work around by allowing works to be used after some reasonable effort is made to find the author and  as much information as possible is included on the work to make it attributable to the author. Following this use, if the author comes forward, the user will not necessarily be required to pay for the past use of the work. From this point the user has two options:

  • Negotiate ongoing use of the work with the author; or
  • If that fails, have the matter resolved by the Copyright Tribunal.

This would bring the treatment of orphan works in line with some other major jurisdictions, including the USA.

It remains to be seen how these reforms will be implemented as the Government will need to balance competing needs.

Please do not hesitate to contact the Griffin Legal team if you have any concerns or questions about using or licensing copyrighted materials.

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