Copyright, exceptions and cultural institutions: Australia is listening!

Whilst the 2016 Copyright Directive proposal might have lost some momentum since its introduction, the appetite for the modernisation of copyright law is still in the cards in other parts of the world – not the least Down Under.

Last week, the Australian government published a public consultation call to gather views on how to adapt copyright law to the ‘changing interests’ of the ‘digital world’ (here). This public consultation follows a report (the ‘Productivity Report’) by the Commission published in December 2016 (see, here and here). The government had published a response to the Productivity report in August 2017 (August 2017 Report, here). (See as well as the exclusive IPKat interview with Patricia Kelly, the Director General of IP Australia, here.)

As promised in its response to the ‘Productivity Report’ published in August 2017, the Australian government is focusing this public consultation on copyright exceptions and how to best negotiate copyright in the cultural sector. On this last point, the call for consultation points specifically to the orphan work scheme currently enforced by the 1968 Australian Copyright Act (here).

Recommendation 6.2 of the Report advised the Australian government to ‘limit liability for the use of orphan works, where a user has undertaken a diligent search to locate the relevant rights holder’. This recommendation has declared its support of the recommendation as they recognise ‘the difficulties both creators and cultural and collecting institutions face in utilising orphan works’, and the risk of ‘[stifling] the ability for knowledge to be shared and new content to be created’ (August 2017 report, p. 7).

Orphan CopyrightKat

This is not the first time ‘orphan work schemes’ have come under criticism or put on the reform agenda (e.g., the EU harmonised national regulations on this point in 2012 – here). Indeed, the difficulty and impracticality of performing ‘diligent searches’ to clear rights has been noted by lawyers and practitioners in the GLAM sector for quite some time now (GLAM sector standing for ‘gallery, library archive and museum’ sector). See here and here for examples of studies and best practice guidelines published on this question.

Now the Australian government’s question for you Kat readers is: how should such liability be limited? What should be ‘the most appropriate way to limit liability for use of orphan works’ under Australian copyright law?

Do feel free to share views and thoughts below – this Kat will happily survey and recap responses in a subsequent post on further discussion on this point.

Do note that you have until 4 June 2018 (17h00 AEST) to submit your contribution to the Australian government!