RECOMMENDATIONS

The Australian Law Reform Commission asks a number of questions in respect of copyright law and orphan works:

Question 23. How does the legal treatment of orphan works affect the use, access to and dissemination of copyright works in Australia?

Question 24. Should the Copyright Act 1968 (Cth) be amended to create a new exception or collective licensing scheme for use of orphan works? How should such an exception or collective licensing scheme be framed?

In response, I would make the following recommendations on copyright term and copyright duration; old copyright works; orphan works; and copyfraud:

Recommendation 1 The Australian Government should withdraw from the Australia-United States Free Trade Agreement 2004 in respect of its obligations on copyright term. Australia should return to a standard copyright term of life plus 50 years for traditional copyright works, and 50 years from publication for other subject matter.

Recommendation 2 The Australian Law Reform Commission and the Australian Government should revise the copyright term for unpublished works, so that it is limited and finite like other jurisdictions.

Recommendation 3 In light of the copyright term extension in Australia, the age of a copyright work should be a factor for consideration in determinations of copyright exceptions – such as the defence of fair dealing; the defence of reasonableness for moral rights; and other exceptions, such as the library and archives exceptions, and miscellaneous provisions such as section 200AB of the Copyright Act 1968 (Cth).

Recommendation 4 The Australian Law Reform Commission seems equivocal about the evidence for the existence of orphan works, noting: ‘Despite widespread acknowledgement that orphan works create significant copyright problems, there is a lack of comprehensive empirical evidence about the economic and social effects of orphan works, or the extent to which the inability to access such works impedes creative efforts. However, studies around the world point to a growing problem, at least in terms of the number of orphan works.’ Justice Breyer’s judgment in the 2012 Supreme Court of the United States case of Golan v. Holder provides a lengthy discussion of the issue:

The statute creates administrative costs, such as the costs of determining whether a work is the subject of a "restored copyright," searching for a "restored copyright" holder, and negotiating a fee. Congress has tried to ease the administrative burden of contacting copyright holders and negotiating prices for those whom the statute calls "reliance part[ies]," namely those who previously had used such works when they were freely available in the public domain. § 104A(h)(4). But Congress has done nothing to ease the administrative burden of securing permission from copyright owners that is placed upon those who want to use a work that they did not previously use, and this is a particular problem when it comes to "orphan works"—older and more obscure works with minimal commercial value that have copyright owners who are difficult or impossible to track down. Unusually high administrative costs threaten to limit severely the distribution and use of those works— works which, despite their characteristic lack of economic value, can prove culturally invaluable. There are millions of such works. For example, according to European Union figures, there are 13 million orphan books in the European Union (13% of the total number of books in-copyright there), 225,000 orphan films in European film archives, and 17 million orphan photographs in United Kingdom museums. A. Vuopala, Assessment of the Orphan works issue and Costs for Rights Clearance 19, 25 (2010), online at http://ec.europa.eu/ information_society/activities/digital_libraries/doc/reports_ orphan/anna_report.pdf (all Internet materials as visited Jan. 13, 2012, and available in Clerk of Court's case file). How is a university, a film collector, a musician, a database compiler, or a scholar now to obtain permission to use any such lesser known foreign work previously in the American public domain? Consider the questions that any such individual, group, or institution usually must answer: Is the work eligible for restoration under the statute? If so, who now holds the copyright—the author? an heir? a publisher? an association? a long-lost cousin? Whom must we contact? What is the address? Suppose no one answers? How do we conduct a negotiation? To find answers to these, and similar questions, costs money. The cost to the University of Michigan and the Institute of Museum and Library Services, for example, to determine the copyright status of books contained in the HathiTrust Digital Library that were published in the United States from 1923 to 1963 will exceed $1 million. Brief for American Library Assn. et al. as Amici Curiae 15. It is consequently not surprising to learn that the Los Angeles Public Library has been unable to make its collection of Mexican folk music publicly available because of problems locating copyright owners, that a Jewish cultural organization has abandoned similar efforts to make available Jewish cultural music and other materials, or that film preservers, museums, universities, scholars, database compilers, and others report that the administrative costs associated with trying to locate foreign copyright owners have forced them to curtail their cultural, scholarly, or other work-preserving efforts. See, e.g., Comments of the Library Copyright Alliance in Response to the U. S. Copyright Office's Inquiry on Orphan Works 5 (Mar. 25, 2005), online at http://www.arl.org/bm~doc/lcacomment0305.pdf; Comments of Creative Commons and Save The Music in Response to the U. S. Copyright Office's Inquiry on Orphan Works (Mar. 25, 2005), online at http:// www.copyright.gov/orphan/comments/OW0643-STM-CreativeCommons.pdf; General Agreement on Tariffs and Trade (GATT): Intellectual Property Provisions, Joint Hearing before the Subcommittee on Intellectual Property and Judicial Administration of the House Committee on the Judiciary and the Subcommittee on Patents, Copyrights and Trademarks of the Senate Committee on the Judiciary, 103d Cong., 2d Sess., 131, 273 (1994) (hereinafter Joint Hearing) (statement of Larry Urbanski, Chairman of the Fairness in Copyright Coalition and President of Moviecraft, Inc.); Brief for American Library Assn. et al. as Amici Curiae 6-23; Brief for Creative Commons Corp. as Amicus Curiae 7-8; Brief for Project Petrucci, LLC, as Amicus Curiae 10-11. These high administrative costs can prove counterproductive in another way. They will tempt some potential users to "steal" or "pirate" works rather than do without. And piracy often begets piracy, breeding the destructive habit of taking copyrighted works without paying for them, even where payment is possible.

This judgment highlights that the problem of orphan works is a major and significant one - requiring a legislative solution.

Recommendation 5 The flexible dealing provision in section 200AB of the Copyright Act 1968 (Cth) could conceivably be used by libraries, archives, and educational institutions to provide access to orphan works. However, this provision suffers from a number of limitations. The provision is not available generally by copyright owners. The provision requires complex considerations about international copyright law jurisprudence upon the 3-step test. The provision appears to be a defence of last resort.

Recommendation 6 The Australian Law Reform Commission and the Australian Government should introduce a defence of fair use – which applies to orphan works. In this regard, the 2012 decision in The Authors Guild Inc. v. HathiTrust provides some useful guidance.

Recommendation 7 The Australian Law Reform Commission and the Australian Government should not introduce a limited safe harbor – such as that proposed under Shawn Bently Orphan Works Act of 2008 (US).

Recommendation 8 The Australian Law Reform Commission and the Australian Government could consider a Canadian style Copyright Board licence. The problem with that approach has been that the Copyright Board licence has only applied in relation to a small subset of the larger body of orphan works.

Recommendation 9 The European Union Orphan Works Directive is limited in its operation and is not a good model to emulate.

Recommendation 10 In order to address the problem of long copyright and orphan works, the Australian Law Reform Commission and the Australian Government should consider formal registration of copyright works, 50 years after publication. A model would be the Public Domain Enhancement Act 2003 and 2005 (US), which was proposed in the United States. However, such a regime goes against the grain of the removal of formalities under copyright law.

Recommendation 11 Australia should not introduce statutory licensing managed by copyright collecting societies in respect of orphan works (the so-called Scandinavian model).

Recommendation 12 In recent years, private settlements – such as that proposed settlements between Google, authors, and publishers in respect of Google Book Search – have been proposed to provide access to orphan works. Private settlements are limited by their nature to the parties to disputes. Private settlements are no substitute for copyright law reform.

Recommendation 13 A particular problem warranting sanction is the problem of ‘copyfraud’ – where copyright ownership is claimed over works in the public domain (for reasons such as the expiry of the copyright term). In his work, Copyfraud and other Abuses of Intellectual Property Law, Jason Mazzone details the problem of ‘copyfraud’:

Copyfraud is therefore the term I use to refer to the act of falsely claiming a copyright in a public domain work. In the typology I use... to classify forms of overreaching, copyfraud entails a false claim to intellectual property where none exists. Copyfraud has serious consequences. In addition to enriching publishing who assert false copyright claims at the expense of legitimate users, copyfraud stifles valid forms of reproduction and creativity and undermines free speech. False copyright claims, which are often accompanied by the threat of litigation for reproduction of a work without the putative owner’s permission, result in users seeking licences and paying fees to reproduce works that are free for everyone to use, or altering their creative projects to excise the un-copyrighted material. Copyfraud also fosters misunderstanding concerning the scope of intellectual property, which further emboldens publishers and other content providers to claim rights beyond those they actually possess.

Mazzone complains: ‘Facing no threat of civil action under the Copyright Act for copyfraud, and little risk of criminal penalty, publishers and other content providers are free to put copyright notices on everything and to assert the strongest possible claims to ownership.’ Australian copyright law would benefit from remedies in respect of copyfraud.