Law Council of Australia

Business Law Section

Orphan Works Scheme – Design Options

The Intellectual Property Committee (IPC) of the Law Council of Australia’s Business Law Section is pleased to provide this submission in response to the Orphan Works Scheme – Design Options Paper.

Overarching questions – 1–2

For the reasons discussed below, the IPC supports the introduction of a limited liability scheme for orphan works in a modified form of Option 1 (as summarised on page 6 of the Paper).

In particular, the IPC supports the introduction of a limited liability scheme for orphan works, subject to a reasonably diligent search, which applies to all types of copyright subject matter (whether published or unpublished) and whether the nature and purpose of the use is “commercial” or “non-commercial”.

The IPC considers this modified limited liability scheme would best achieve the policy goal of facilitating publicly beneficial access to, and use of, genuinely orphaned materials by removing or reducing legal risks for good faith users without unreasonably prejudicing the interests of the owners of copyright in the material, including their ability to assert their rights if they come forward.

The IPC submits that the orphan works scheme should operate as a form of last resort or backstop available to a user where other options such as licences (whether voluntary or statutory) or defences are not available. If a user chooses to avail themselves of the option, the user’s ability to rely on the scheme should depend on the user’s compliance with the scheme so that, if the user fails to make out all the requirements – including, in particular, the conduct of a reasonably diligent search in all the circumstances of the case – the limitations on liability are not available.

We comment in more detail below on aspects of this overall position in response to questions in the Paper.

Read the full submission below.

Last Updated on 02/12/2024

Share

Related Documents
Tags

Most recent items in Business Law Section


Trending Items in Business Law Section