Orphan Works Scheme
Overview
The aim of the Orphan Works Scheme is to help researchers, scholars and support staff to better enable access to seemingly ownerless historical works. The Orphan Works Scheme is specifically for works where the copyright holder cannot be found or when it is unclear who the copyright holder is. The Scheme minimises financial restitution, if a copyright holder appears after a seemingly Orphan Work has been copied, displayed or highlighted in any way. The Scheme also allows the Orphan Works user and the copyright holder to firstly come to an agreement on the use of the works outside of the legal system, which is useful if the work has been publicly displayed, published or digitised. The Orphan Works Scheme protects potential copyright holders by requiring users of these works to step through thorough due diligence processes prior to reusing the works.
Due Diligence Processes
The due diligence process requires the user of an Orphan Work to show evidence of having searched for a copyright holder. Some works will require a more robust search, than others.
Higher Due Diligence Factors | Examples | ||
|---|---|---|---|
Will the material be used commercially? | Published in a book | ||
Is it likely that the material has been re-used in multiple places, without the copyright holder’s permission? | A photo that has gone viral on the internet | ||
Is the material culturally sensitive? | |||
Is the material recent? | Website material from a site, that has a post 2000s copyright statement. | ||
Is the material sensitive? | Anonymous blog on gender dysmorphia | ||
Is the material private? | Illicit love letters | ||
Does the material contain Indigenous knowledge, culture or intellectual property, (ICIP)? | Indigenous scientific information on the medicinal properties of a pain killing herb. | ||
Is the material from overseas | A foreign language film |
Copyright holder searches:
- must be taken over a reasonable period of time, to show due diligence
- must be taken close to the intended time of use
- must be filed and kept, to prove due diligence in the search process and to rely on the Orphan Works Scheme
Works relying on the scheme must have the Orphan Works Scheme notice attached to the work in a reasonably prominent position.