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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
in our information sheet An introduction to copyright in Australia, and online at www.copyright.org.au/introduction-
to-copyright.
PO Box 1986, Strawberry Hills NSW 2012 info@copyright.org.au T +61 2 8815 9777
ABN: 63 001 228 780 www.copyright.org.au F +61 2 8815 9799
Australian Copyright Council Information Sheet G101 Orphan works: proposed changes in the US & issues for
Australia 2
PO Box 1986, Strawberry Hills NSW 2012 info@copyright.org.au T +61 2 8815 9777
ABN: 63 001 228 780 www.copyright.org.au F +61 2 8815 9799
Australian Copyright Council Information Sheet G101 Orphan works: proposed changes in the US & issues for
Australia 3
What would the changes mean for Australian artists and copyright owners?
If an orphan work scheme is introduced in the US, it will affect activities that take place within the US, regardless
of where the material was created. This means that someone in the US who wants to use your work, and cannot
locate you to get permission, might be able to rely on the orphan works scheme.
Should you panic? Consider the following.
The legislation would not affect activities taking place in Australia.
The legislation would not:
• allow anyone to use your work without permission if it were reasonably possible for them to identify and
contact you;
• allow anyone to use your work without permission if they contacted you but you refused permission or asked for
a higher licence fee than they were prepared to pay; or
• require you to register your work in order to protect it.
If the House bill were passed, you could find out whether someone had used your work in reliance on the “orphan
works” provision by checking the archive of “Notices of Use” at the US Copyright Office. You could then contact the
person and they would have to pay you reasonable compensation. You might also be entitled to take legal action
to prevent them making further uses of your work. However, if their use of your work involved incorporating it into a
new work, you might not be able to stop such use. Nor would you be able to claim “statutory damages” for
infringement (although statutory damages cannot be claimed in any case unless the work has been registered with
the US Copyright Office).
If either bill were passed, a user who could not show he or she had made “diligent” attempts to contact you, or
failed to negotiate or pay you compensation, could not rely on the orphan works provisions.
Compare this with the current situation: how would you find out about infringing use of your work in the US? If you
found that someone in the US had infringed your copyright, what would you do? Do you currently register your works
at the US Copyright Office? (If not, you could not claim statutory damages anyway.) There are difficult practical
and legal issues involved in detecting, and taking legal action for, copyright infringement in another country. The
introduction of an orphan works provision (at least if it includes a “notice of use” provision) is unlikely to make
these difficulties significantly worse for Australian copyright owners.
PO Box 1986, Strawberry Hills NSW 2012 info@copyright.org.au T +61 2 8815 9777
ABN: 63 001 228 780 www.copyright.org.au F +61 2 8815 9799
Australian Copyright Council Information Sheet G101 Orphan works: proposed changes in the US & issues for
Australia 4
PO Box 1986, Strawberry Hills NSW 2012 info@copyright.org.au T +61 2 8815 9777
ABN: 63 001 228 780 www.copyright.org.au F +61 2 8815 9799