What do dusty long-forgotten prints in the British Library, your latest Instagram masterpiece and Oliver Twist have in common?
Answer: There’s a fair chance they’re all orphans.
The term “orphan” is used to describe copyrighted material where the rights holder is not known or cannot be found after conducting a “diligent search”. The UK has passed legislation which aims to enable publishers to use “orphan” works for commercial and non-commercial purposes. The changes were introduced through the Enterprise and Regulatory Reform Act 2013 (Act), as amendments to the Copyright, Designs and Patents Act 1988 (UK). The Act provides for the creation of a licensing organisation to grant non-exclusive licences, in respect of the orphan works, to do any act restricted by copyright that would otherwise require the consent of the missing owner.
The Act has been widely dubbed the “Instagram Act” – a reference to Instagram’s hugely unpopular attempt last year to commandeer the sub-licencing rights to Instagram users’ photos (read more here).
In support of the Act, the UK Intellectual Property Office (IPO) argues that, because the copyright owners cannot be found to ask their permission, there are many millions of orphan works, particularly in cultural institutions, that cannot be digitised for display to, and use by, the public. For example, the Imperial War Museum has an estimated 2.2 million photographs where the rights holder has not been traced. This, they argue, is a restriction on both cultural and economic growth.
However, the reforms have inflamed many commentators. More than 70 photography groups presented a joint briefing paper to the British government expressing concerns that the legislation will “reduce the ability of creators to make a living from their work; confiscate the property of British citizens and of those to whom the UK owes a duty of protection under international treaties; and diminish the UK’s current world-leading position as a home for the creative industries.” Bolshy US writers and photographers have also promised that the reforms will be met with a “firestorm” of international litigation.
How could recent works by artists end up as orphans? In the bustling pandemonium of cyberspace, millions of images become quickly orphaned online as they move from Instagram to Facebook to Twitter to Tumblr like a crowd surfer at Laneway Festival. While many photographers may be unfazed by their photos being passed around by Tweeting teenagers, it’s a different kettle of fish when their images unexpectedly show up on the pages of British tabloids. Of course, a party wishing to obtain rights to an orphan work would still have to perform a “diligent search” for the rights holder. However, “diligent search” is not defined in the Act and, unfortunately, comprehensive image recognition services are not yet in place (compared with sound recognition services like Shazam). Even images embedded with metadata can easily be stripped of that data, rendering those happy snaps exposed and ripe for abduction.
Similar orphan works reforms were introduced as part of the Digital Economy Bill 2010 (UK), and were subsequently dropped following a furious public backlash. This time, the legislative changes are snuggly buried in the depths of the Enterprise and Regulatory Reform Act, which also deals with such broad topics as employment, agriculture and cartels. The precise details of the reform are not yet known, as the Act is merely enabling legislation. The nuts and bolts will come later in the form of a statutory instrument (secondary legislation). Although parliament technically still needs to pass the statutory instrument, it has not voted down one of these instruments since 1979, so the parliamentary process from now is largely a formality.
There is no equivalent to these UK reforms in Australian copyright law. Nothing allows the use of a work without permission merely because it is an orphan work. There is one exception that allows the reproduction or publication of old (more than 50 years after the author has died) unpublished works held in libraries, provided it is done for the purpose of research or study.
As with any responsible pet owner, there are things creators can do to make their works less likely to go walkabout. These include:
- tagging your works with watermarks and metadata;
- including your contact details on your works and responding to any requests you receive promptly; and
- registering your work with government agencies.
Ultimately, time will tell whether this reform will result in hoards of stolen “orphans” and the prophesised “firestorm” of litigation.
 Section 51 of the Copyright Act 1968 (Cth).