A new era for orphan works in Australia – Elliott Bledsoe

In this Creative Technologist Talk, Elliott Bledsoe explored Australia’s new orphan works copyright scheme and what it might mean for cultural organisations and their publics. Alongside its timely discussion of the new legislation, Elliott's talk provides a helpful introduction to copyright and orphan works more broadly, opening up a wider conversation about access, reuse and public benefit in GLAM.

View the presentation slide deck here

Transcript

0:00:00 - 0:26:45
Elliott Bledsoe
Hi, everyone. I'm Elliot. As was mentioned, I wear no actual hats, but metaphorically wear lots of hats. As president of Wikimedia Australia, as the co-lead of Creative Commons Australia, as a long time copyright reform advocate and an arts marketing consultant. Look, thank you for for coming along to this creative technologist talk. I'm not sure I would describe myself as creative or technologist.I can talk, but the rest of it, well, we'll see. But I'm also particularly grateful that people are willing to take their lunch break to talk about copyright. That's not what most people want to do. So, I'm very grateful that, you're here to learn a little bit more about, Australia's new orphan work scheme. So before we jump into it, how many people are actually familiar with the fact that we passed a new copyright amendment act that introduced an orphan work scheme in Australia? A few people.That's good. Most ordinary Australians don't know and probably don't care about the fact that we've introduced an orphan work scheme. But as I'll talk a little bit about today, the potential public interest benefit that the scheme will bring is really quite phenomenal and is world leading. And so while it's unlikely to make a significant impact on the way that GLAM institutions – galleries, libraries, archives and museums – work with orphan material, it will have a significant and fundamental impact on how end users like your public, your audience, make use of orphan material.So we’re going to talk about the orphan work scheme, and we're going to talk a little bit about AI, particularly in the context of some of the AI policy work that Ana and I have been doing here at SLV. I'm not going to talk about AI and orphan works. We’re going to talk about these two as separate topics. And AI gets a lot of attention at the moment.So let's focus mainly on the orphan works thing, because it's new and interesting and isn't sucking up all the oxygen like AI is. Before I get into it, there are of course, two things I would like to just say first. I also would like to acknowledge the traditional custodians of land, that we're on today, the Boonwurrung and the Wurudjeri Woi-Wurrrung people as the traditional custodians of this place.As a copyright expert – let's use that in air quotes – but as a long term copyright person, I think it's important to recognise that copyright is a system for the management and sharing of knowledge and information, and that's actually something that's been happening on this country for hundreds, thousands of years, and that first peoples around the world have been sharing knowledge, through generations for a really long time.And so copyright kind of the new kid on the block when it comes to the sharing of knowledge. So I want to contextualise the discussion of Western copyright systems within that larger, information exchange that's been happening for a very long time. Of course, you can also take as many notes as you like, but you don't have to, because in fact, you can actually already get the slides now.They're up on Google, Google Docs, Google Slides, you can access them and make use of them. Don't worry, that means you don't have to write anything down. And also the QR code will be in the bottom corner over the next couple of slides. Because feedback I've always gotten is that the QR code is not on screen long enough for some people.So, hopefully you'll be able to get access to that. But yes, you don't have to write everything down so you can kind of focus on the conversation that we're having and come back to these slides later. All of the slides have other extensive notes that we won't get through today, that provide further context about the particular topic on that slide.So that is good. Of course. Also, it's important that this is a two directional conversation where possible. And so, feel free to ask questions, make comments, disagree with me, maybe agree with me if you want to, to add conversation to it. If we don't get through all the slides, it really doesn't matter. What's more important is that we're having a useful conversation about the orphan works scheme.So, feel free to jump in at any time. I'm not a questions at the end kind of presenter, so feel free to chime in any time. And of course, anybody who knows me knows that pretty much everything that I do is available under the terms of a Creative Commons Attribution license, which basically means you can do anything you like with it.You can copy it, you can adapt it, you can share it. You can even make money out of it. If you find a way to make money out of it, please let me know. As long as you identify me as the original creator of the material. Go nuts. Do whatever you like with the slides. However, it is useful to you.Okay, so let's get started. So we're going to look at two particular things in this session. Firstly we're going to talk about the new orphan work scheme that came in in early April this year. And particular we're going to focus a little bit on what is an orphan work. Now, I know a lot of this audience will probably know that.But, a lot of the types of beneficiaries of this scheme, public, in particular, are unlikely to actually have an extensive knowledge of what an orphan work is. So it's good to be on the same page when we're talking about these things. What does the scheme actually do? Like what is its purpose? What's its rationale, and how does it operate?And so what does it actually allow people to do under the scheme? And how is that different to what's been happening with Orphan Works to date, and why libraries and other GLAM institutions might need to know about it, given that, as I'll explain, they're probably unlikely to use the scheme, but their audiences are likely to. And then we're also going to talk a little bit about some of the AI, speculative policy stuff that Ana and I have been working on.In terms of the way that SLV might think about and position itself in relation to AI going forward. So part one, the new orphan work scheme. So what is the kind of source of orphan work, where do they come from? Why do they exist? And what are they? Right. So realistically, an orphan work is in-copyright materials.So something that is a within scope of the Copyright Act and B is probably likely still in copyright, but where we can’t identify the owner of that material, right. Hence orphans. In fact, there's actually lots of orphans, lots and lots of orphans. And so this creates an interesting quandary or problem for the copyright system, because the way that the copyright system predominantly works is around a permissions based approach to the re-use of copyright protected material.So when you can't identify a copyright owner that creates, a blockage or a bottleneck in the copyright system. So of course, within the context of libraries, we know that there is lots of orphaned material that comes up. Right? So things within our collections can become orphaned in a number of different ways, partly just because of the nature of ephemeral material that was never intended to identify the copyright owner.You know, so things like restaurant menus are very unlikely to ever include, you know, small text at the bottom of who created the artwork for the menu, you know, theater programs, pamphlets, flyers, back in the day when you used to get advertisements in the mailbox, etc., all of this stuff is unlikely to record who the copyright owner is.Similarly, there's volumes of, you know, nonprofessional photography and video that we might hold in our collections, depending on the type of institution that we are. There's certainly lots of work that is intentionally anonymous, or may have been published pseudonymously, that pseudonym might have been meaningful at a particular period of time, but has lost, kind of memory of of that pseudonym and who that person might be over time.Meaning that they've become effectively orphaned. A whole range of material that may have never had an author's name on it letters, diaries, journal entries, these sorts of things. All, for example, where what identifying information is on them is not enough to identify a specific person. Right? So it might be Jay Smith. Right. So that could be Jay Smith from the greater Melbourne area who lived around these particular dates.And there could be 40,000–45,000 people who could be that person. There's also, of course, a range of published material where the entity or organisation that, publishes that material may no longer exist. They might have, you know, closed down or they might have been subsumed into another entity. We also have a whole range of material where there could be multiple potential copyright owners.So things like, you know, freelance journalists or freelance photographers contributing to newspapers or journal articles where there could be the potential for multiple copyright owners over different parts of a particular cultural, or collections item, whole range of similar sorts of issues come up in the audiovisual space where there's multiple layers that exist within the same object, right?So you might have audio as well as moving image. There might be still images, other things layered within that audiovisual work. Lots of grey literature, stuff that's put out by universities, government departments, similar sorts of bodies where they may never have identified who the author of the particular work is. So, you know, things like consultation papers on a new national cultural policy, for example, doesn't identify who is the author of that consultation paper.So a lot of this material, it's actually very difficult to identify the copyright owner, and from the very beginning of their public life, they're effectively odigitisationerative for that company to want to support it. Right. So it's not that they aren't the copyright owner, it's just that they won't give you an answer if you ask for permission because it's not worth their time or effort.You know, their legal team get paid too much per hour to bother responding to a simple permissions request. There's also a range of material published by things like United Nations bodies. You know, other large multinational not-for-profit organisations where similarly, they don't have the resourcing and capacity to support a huge volume of permission requests. So this material becomes effectively abandoned and as a result, an orphan work.Now, because copyright protection in Australia is free and automatic and covers a whole range of stuff, right? It covers literary, dramatic, musical and artistic works as well as sound recordings, films, broadcasts and published editions. So the kind of look and feel of, say, a book or some other edition of a work, all of this stuff is protected for free automatically.And as a result, the default position is that without permission, you can't use that material. But in some cases an exception may apply. But for a very long time, Australia hasn't had an exception for the public. In relation to the use of orphan materials, so that effectively ruled out an exception because Australia has largely, not chosen to adopt a fair use model which might have introduced a pathway to the use of orphan materials.And so as a result, we rely on specifically worded exceptions in the Copyright Act, of which that current well, historically, there wasn't one in relation to the use of orphan works by members of the public. So without an exception, effectively the mechanism through which you make use of material is through the granting of a permission through something like a licensing agreement, for example.Now, of course, the problem with that is if you don't know who the copyright owner was, you can't ask them for permission. Similarly, though, the nature of ownership of copyright seems relatively straightforward, but can be quite complex in terms of who you need to get a permission from. So the question who is the copyright owner may seem like a simple one, but actually often is not.There is a distinction between who is the creator and who is the copyright owner. They may be the same person, but they may also be different people. So for example, creators of works are usually referred to as the author in the copyright system. Just for fun, subject matter other than works are called makers. I don't know why there's a distinction there, but they are.The creators of published editions are called publishers. We have lots of terms. Let's just call them all creators. So there's a kind of group of people related to copyright material who are the creator of the material. And then there is potentially other parties who might be the copyright owner that ownership of that material may have transferred to another party.As a general rule, the creator is the copyright owner of the material. But law loves lots of exceptions. Copyright is no exception to that, pardon the pun. And so there are a range of scenarios where copyright may vest in other people. Right? There may be joint ownerships. There may be, an employee employer relationship in place. There could be contractual terms that changewho is the owner of the copyright material. In situations where, the Crown is involved. So a government is involved, then it may be Crown copyright, etc.. Commissioning arrangements. It will depend on the terms of the contract. So there's lots of things that make the question who is the owner of the copyright potentially more complex than it might seem?So you kind of add to the problem of authorship and ownership the problem of copyright duration as well. Right? So one of the problems is that the creator is fundamental to the understanding of the duration of copyright. So when the creator dies is instrumental to calculating the term of copyright, because copyright lives on after you die. So the life of the creator plus 70 years for all of the work's categories, for example.So knowing who the creator is, even separate to the copyright owner is important. So so permission. You need to know who the copyright owner is for copyright duration. You need to know who the creator was. And so the combination of these two things makes the use of orphan works really difficult. Now I will say to Australia's credit, we have made some attempts to address the problem of orphan works before.Right back in 2006, we introduced, a range of amendments to the Copyright Act, including the introduction of section 200. I b I'm going to assume most of this audience are familiar with 200 B it's the kind of flexible dealing provision that allows, GLAM institutions to make use of copyright material in lots of different ways for public benefit.One of those, commonly accepted uses is the digitisation and release of orphan materials. Then of course, jump forward 11 more years. It's pretty quick in terms of copyright law reform. But we introduced the Disability and Other Measures Act, which brought in for the first time removing the distinction between published an unpublished material. So removing effective perpetual copyright over published, sorry unpublished material, and introducing a way of calculating a duration of copyright for orphan works.So this meant that now, if the work was orphaned, you could use something like the year it was first made public, plus 70 years to determine a copyright period, or if the work had never been made public the year it was created, plus 70 years. So this was great because it introduced a pathway for orphan materials to enter the public domain, which has historically been difficult to work out because you didn't know when the person who created it died.That's great. If you want to use orphan works after the copyright period, the problem is that it still meant that in copyright material couldn't be used. Oh, sorry. Just quickly, when the idea of made public is situations where the materials say been published, performed or communicated, such as putting it online, broadcast, you know, etc.. And so all of these types of actions can be a determination on whether or not material has been made public.So, you know which one of those two calculations to apply on orphan work? There are a couple of others for artistic work. So all of the ones that were mentioned plus exhibiting the work, etc. and of course, constructing a building also, is making a work public. The important thing, though, is that all of these acts only apply if it was the copyright owner who allowed them to happen, so they did it themselves, or they authorised somebody to do it on their behalf.Okay, so fast forward to now, nine more years later, and we've introduced the Copyright Amendment Act, 2026, which introduces a limited remedy scheme for the use of orphan works. So as I said, the problem or while it's really important, I don't want to diminish the introduction of a copyright term for orphan works. It didn't address the problem of making use of orphan works within their copyright lifetime, so there was still risk involved in making use of copyright material.And there was a potential that the use of them could see you potentially liable for financial damages, for infringing copyright. Because of course, also, we know that copyright doesn't care whether you use was commercial or noncommercial, whether it was, you know, a significant broad public use or whether it was a kind of smaller scale use infringement, infringement under the copyright system, it may impact how much damages are awarded, but largely infringement is infringement.So in, end of March, Australia introduced or tabled in Parliament, the Copyright Amendment Bill, which looked to introduce a scheme to unlock creative and productive reuse of orphan works by any type of user. So where 200 IP had been limited to claim institutions, this scheme applies broadly. So the scheme introduces a limit on remedies and applies across any copyright material, any type of user and any type of material.So all of the literary, dramatic music, artistic as well as, sound recordings, broadcasts, films, etc..So the way that the scheme operates is that if a user has followed the conditions of the scheme, then they are afforded protection from financial liability for the use of that material. So the requirements in some of this might sound familiar. If you're used to releasing orphan works under 200 a B, because it is largely designed of the kind of institutional practice of 200 IB, but the user is undertaking what's called a reasonably diligent search for the copyright owner.So they've tried to identify the copyright owner. They've done that within a reasonable time frame of the, use of the material. They've kept a record of that search. And as a result of that process, they are satisfied that they are unable to identify or locate the copyright owner, and they've made a notice that they are intending to use the material under the orphan work scheme.Then a court cannot award damages against them. So the court can take a number of factors into account in determining reasonableness, such as the nature of the copyright or, the type of use that was being made. The location of the potential copyright owner, the potential impact on their market, the way that the search was conducted, and industry guidelines of which there aren't any for this scheme yet.But, I'm sure that will develop over time and whether or not we don't have any kind of legislative rules as yet. But there's the potential for the attorney general to add other factors through a legislative instrument. So where you've met the requirements, a user under the scheme cannot have damages or an account of profits awarded against them.Any other types of financial damages or any other monetary relates so effectively, it takes those off the table to reduce the risk and encourage and incentivise the use of orphan materials. That said, though, the court can award reasonable cost like reasonable, equivalent of what would have been, say, a fee for the use of the material, it's hard to say how that will play out.My feeling is that given that most of the material was hard to identify and therefore probably wasn't in commercial exploitation at the time, it's probably unlikely the is going to award hundreds of thousands of dollars as a reasonable fee. The scheme also anticipates and envisages use of material if a copyright owner comes forward, so one of the purposes or intentions of the scheme is to be able to make productive and creative reuse of orphan works, but also to hopefully reconnect copyright owners with their copyright if material has been orphaned.And so part of that is anticipating what might happen if a copyright owner comes forward. So the scheme anticipates formally orphan works and what might happen. So in that context, if a user of the work after copyright owners come forward wants to continue making use of that material, the legislative process introduces a mechanism through which they can engage in negotiation over the ongoing use of that material, you know, and come to whatever kind of terms and fees they determine.If for some reason they can't come to an agreement, then there's also a mechanism for taking the matter to the copyright tribunal and having the tribunal determine reasonable terms and say so, the ongoing use of that material. Importantly and probably most of you won't read the expand through memorandum, but it is a well worth a read if you want to understand more of the context of the legislation and where it's coming from.But it does talk specifically about how the scheme interacts with other parts of copyright and potentially other areas of law as well. So importantly, the scheme the Am specifically says that the scheme is not designed for bulk uses, such as mass digitisation, which collections would likely rely on 200 a day. And it's not designed for training data ingest for AI systems, for example, uses of the educational statutory license can effectively decide which of the schemes they apply on.Or they might use, orphan material under. But they have to stick to the decision that they've made. Once they've made one. You can't just jump ship to the other scheme. As I said, GLAMs are likely to continue relying on 200 IB, and this scheme does not change any of the nature of 280 or how it works. But in theory, collections could rely on this scheme if for some reason it was a, you know, easier pathway to the activity they wanted to do.There is also an expectation of greater search effort in a number of different scenarios, such as where the material may have a commercial life, but also particularly identifying things like the potential impact on First Nations communities and the data sovereignty or the, custodianship of their indigenous cultural and intellectual property. So these sorts of things have been envisaged in the design of the scheme.The scheme also does not change or impact the operation of the moral rot scheme either. So for example, if you do have a journal article that's attributed to J. Smith and you don't know who the copyright owner is, then attribute Jay Smith, right? So follow the moral rights process to the extent that you can in the context that you're working with.Also those types of acts of, making things public. Like I mentioned before, any use of material under the orphan work scheme does not constitute making public of the material. Okay. So why should GLAMs know about the scheme? As I've kind of already alluded to, it's very unlikely that most GLAMs will be using it. But I do think that there is a potential that smaller, not for profit organisations holding collections of material like genealogy societies or historical societies or ourselves or any not for profit, for example, might opt to use this scheme over 200 IB, even though they technically can rely on 200 AP.There is quite a bit of complexity to how 200 a day operates, and this might be a simpler and cleaner pathway to using orphan works from smaller institutional collections. As I said, I think that there's an important role here for larger institutions to be aware of the scheme and to be able to inform and educate their audiences about the scheme, because this is really designed to stimulate creative and productive reuse of orphans.And while lots of orphan works exist in lots of places, GLAM hold significant volumes of orphan material and also being able to just respond to things like public inquiries or questions that might come up about the use of orphan works through, say, front of house or, ask a librarian functionality. For example. Okay, so if you are super excited and want to know even more about the scheme, there is a longer round up on my website which you can have a look at, which goes into quite a lot of detail about the scheme in each of the things that I've kind of flagged here.Any questions? No one asks any questions during the session. So I got through my slides quicker than perhaps I would ordinarily.0:26:45 - 0:27:03
Audience member 1
You've, discussed a lot of the requirements of, you know, like a, I guess, a just search or like a correct search for an orphan work in the creators. Is there much sort of, I guess, with the scheme, with full sentence sort of examples or kind of precedents of what that might look like for various different cases?0:27:03 - 0:28:44
Elliott Bledsoe
Yeah. Look, it is an interesting question. And the consultative process around getting to the scheme has been very long and across successive governments. One of the things that really came out of that consultative process was to try to avoid being too prescriptive about the scheme, and how it would work. That has pros and cons, right? Because illustrative examples are very useful for people feeling confident in the use of the scheme.But largely the kind of idea was that we didn't want to limit the potential of what the scheme could do. By giving a list of examples of the types of use cases that said, I am hoping that over time, industry practice or industry guidelines and other types of mechanisms through, say, the Copyright Council or similar bodies will start to bring out some guidance as well as some illustrative but non-exhaustive lists of what you might make use of, under the orphan work scheme.But at the moment, I mean, the scheme came into force on the 2nd of April. So we haven't had a lot of time to develop industry practice yet. But I do think that there's a lot of potential for the very well-developed and robust practices of the GLAM sector to inform what a and public use a scheme would envisage in terms of reasonable search types of, use cases, those sorts of things.So I think there's a lot of potential for the GLAM sector to really participate in a proactive way in helping develop how that guidance works for end users, because in lots of cases, it's probably going to be through libraries that end users are seeking access to orphan works.0:28:45 - 0:29:08
Audience member 2
Great talk. Thank you. So one of my pain points is reasonable search. And from what I've I've read about the new, orphan works amendment is that there's been no update to what a reasonable search is. And as Elliott notes, some of you might know in the Copyright Act, it's incredibly nebulous. It is, diligently reasonable.0:29:08 - 0:29:10
Elliott Bledsoe
Reasonably diligent.0:29:10 - 0:29:15
Audience member 2
Reasonably diligent search. It's just called that. And it is...0:29:15 - 0:29:16
Elliott Bledsoe
Not defined.0:29:16 - 0:29:42
Audience member 2
It is not defined in any way. And so there are industry guidelines in Australia about, you know, what constitutes as a reasonable search. But, how do you feel about the sort of the lack of any further description about that? And, and is there anything more that we, as you know, libraries and industry professionals can kind of do to help guide our users on that?0:29:42 - 0:32:34
Elliott Bledsoe
Yeah. Look, I think it's a very valid point. The GLAM sector has had about 20 years to kind of nut out what they think is a reasonable search. And I wouldn't say that there's consensus across the GLAM sector either. And yes, law is a funny based in that way that it will painstakingly over articulate certain things and then leave other things completely non undescribed.So I think part of the opportunity with complexity in this space is that there are questions around whether or not reasonableness will mean the same thing in the context of a GLAM institution using 200 eBay or a member of the public making use of an orphan work. I don't know what the answer to that question is. I suspect probably reasonableness will be different in those scenarios.But I do think, as I said before, I think there's a real opportunity for the GLAM sector to support the public by leaning into the experiences that the sector has had over a number of years, managing how they deal with orphan works, and using that as a basis for how end user guidance might develop over time. So I definitely want to say like some sure, some processes will start to develop soon with copyright stakeholders around development of some industry guidelines for the new scheme.And I would definitely hope that some GLAM participants are part of that process. So it's not just, entirely directed by rights holder organisations or other stakeholders in that mix. I think libraries have a lot of experience with orphan works and are very familiar with managing the kind of public interest, the copyright ownership balance. And so I think that's an important part of that process.So in terms of what is reasonable, I can't answer that. And I guess we'll wait to see over time what reasonable this means. But we do know, at least through the Am expository memoranda, that there is some thinking about areas where reasonableness might look different. Right? So particularly things like, orphan materials that include indigenous cultural knowledge, there is definitely an expectation in the expansion memoranda that the level of search effort, therefore the reasonableness would be much higher in that context because of the potential, you know, to cause harm to to communities or to, do things that aren't within the kind of custodianship of that community group and their content.So I think it's very new as a scheme. Yes. We've been waiting 22 years for it. Maybe we could have been thinking about some of this in that 22 years. But either way, we're kind of here now. I think over time it will start to develop, and that GLAM has an important role to play in that.0:32:34 - 0:33:01
Audience member 3
Thanks, Elliot. This is probably just exposing my lack of knowledge of copyright, but, I always associate 200 a B very much with the digitisation, and I work a lot with digital materials. And so software is a big part of that. Is that something that is covered equally under both 200 AB and the new orphan works provision, or would it be easier to say abandoned?Where is abandonware under the new provision?0:33:01 - 0:35:01
Elliott Bledsoe
Ooh good question. It's always good to get a complex question on the public stage. I find just so interesting. Okay, so software creates a particular set of additional considerations, problems perhaps in a copyright context. So to keep the matter simple, if we're talking about software that has no access control measure on it, no technical protection measure, that is a different situation to where it has, you know, say DRM or some other access control.So without access control, it's like any other orphan material. And you apply the, you know, the elements of either 208 B or the orphan work scheme to that orphan material. It gets more complicated when you have access control software built into the software product, because 200 a B cannot be used to circumvent a technical protection measure. It's interesting because having read the M and the supplementary explanatory memoranda, no one's mentioned anything about whether or not anti-sex convention applies in relation to orphan works under this game.And so I will have to ponder that more. But my gut instinct would be to say trade it like 208 B. And that is a technical protection measure exists on the software that an exemption still doesn't get around the anti circumvention provision. So boo sorry I don't think it's going to help in that regard. But that you know of course leads to lots of important questions around, you know, software and other types of, multimedia and the kind of need for emulation and other types of preservation methods that have to grapple with the fact that a lot of this stuff has circumvention built into it, or anti circumvention built into it.0:35:01 - 0:35:13
Audience member 4
Thank you. Elliot, I wondered if you had any kind of more like a critique of it, like where you think there might have been opportunities to go further or do it differently. Yeah, a bit of a takedown.0:35:13 - 0:38:04
Elliott Bledsoe
Okay. So I mean, this is interesting one. I will say having spent a better portion of two decades thinking about orphan works and looking at different ways of approaching the problem that other territories, other jurisdictions have focused on, I will say that largely and, you know, this is not to to cheerlead the Australian system, but largely it is actually a relatively well thought out system, probably taking 22 years to develop.It helped in that regard maybe, I don't know. But what I mean by that is that we have largely tried to avoid some of the pitfalls that some of the other schemes have introduced, such as the European Union approach of requiring registration in a registrar, of orphan works, which has a huge kind of administrative burden, as well as costs associated with that, which claim institutions and other uses of orphan works often don't have huge amounts of disposable cash.So the idea that they're expanding that to make use of material where copyright owned can't be found is a bit of a pickle, really, in a similar way, the kind of collecting society licensing approach is also got complexities. Why would you pay out to a collecting society who in theory pays out to a copyright owner that you can't identify?So there's complexities in some of the schemes that exist around the world. So to Australia's credit, bringing in a system that didn't duplicate either of those approaches, I think is quite brave. This approach doesn't have a high level of administrative burden or financial burden on uses of the scheme, and does strike a pretty good balance between rights holders and the need to protect, you know, the ability to assert their rights, as well as the fact that a lot of this material is often for a reason.And so if there is productive and creative or use of it, that's a benefit to society, in the economy and unlikely to be a significant drain on the copyright owner. I do think there is room for improvement, of course, but largely I think it's landed a pretty good place. I think the potential for reasonable costs could be a slight sticking point for some people, but as I said, given that a lot of the material you haven't been able to find a copyright owner, there's probably a good chance that means it's not in high commercial exploitation, because if it was, you would think you would be able to find the copyright owner.So I think it's probably unlikely that a court is going to award significant, reasonable costs. So I think that maybe a small dissuade effort for, you know, smaller players with limited budgets. But I think overall it's probably the only thing that I think could be improved. But I think generally speaking, the scheme is pretty good and world leading.But don't tell policy makers that.0:38:04 - 0:38:13
Audience member 1
How does this scheme interact with other sort of schemes around the world, or if a work's country of origin can't really be identified?0:38:13 - 0:39:28
Elliott Bledsoe
Yeah. So the scheme definitely envisages the use of material, regardless of whether the potential owner of that material is an Australian, citizen or permanent resident. So our copyright system, focuses on Australian citizens permanent residence and the UN convention reciprocal countries. Essentially, the scheme doesn't limit it to only its filing material. Because the thing is, if you can't find a copyright owner, you probably can't determine the nationality either.But it does, you know, on that idea of reasonableness, it does explain in the memorandum that where it's likely where you have a reason to suspect the copyright is from an owner overseas, that you should exert more search effort in trying to find that copyright owner, because they're at a disadvantage to a national in terms of being able to determine or to know that you've made that use.Right. So when you make your notification, there's less likelihood that a foreign copyright owner will find that than an Australian. In theory, I guess, I don't know, maybe neither would find it, but at least in theory, there's an expectation you would do more search effort for a foreign copyright owner.0:39:28 - 0:39:53
Ana Tiquia
Thank you so much for joining us, Elliott and for sharing such incredible, detailed knowledge of the oprhan works scheme. And I think particularly helpful to see it within that larger framework of copyright reform over the last 20 years. Just to finish, I was very curious, Elliott, do you have any personal plans for creative, a productive re-use of any open works?Now that you're very familiar with the scheme.0:39:54 - 0:41:41
Elliott Bledsoe
Ooh, well, it's interesting you ask that, actually, because, Wikimedia Australia, which I'm the president of, and I've been working directly on an archival project around what's called the Ian Peter Archive. Ian Peter founded Pegasus Networks, which is one of the first commercial ISPs in Australia, was really fundamental to the kind of rollout of internet access, the kind of idea of internet access as a human right, and the importance of connectivity through the Asia-Pacific region, you know, so a really important player in the history of the internet, but largely unknown in terms of the kind of international articulation of the internet.Wikimedia still has been working with IP Nick, the names and numbers authority for this region on digitising and collection, which has a whole lot of orphan works in it. And we anticipated that before this game, we could release about 2% of the collection. And with this game, we can release about 98%. That wasn't meant to be a plug in.I don't think you even knew about that project, but now you all know about it, so look out for it. We will be releasing that later in the year and hopefully it will help build some confidence around the use of this game and what it's designed to do. Because, Wikimedia Australia is probably a prime example of, you know, a not for profit that it holds a collection, but probably wouldn't rely on 280 because it doesn't have the kind of legal and copyright expertise to determine how to make use of 200 IB.So the ability to use this game is actually a game changer in terms of that archival project. So yeah, we'll be putting out lots of stuff under the steam and hopefully won't be a test case for getting sued for it.0:41:41 - 0:41:56
Ana Tiquia
So I thank you so much, Elliot. That sounds fascinating and looking forward to hearing more. And thanks so much to all of you for joining us and being a part of the conversation. And as Elliot mentioned, giving up your lunch breaks to talk about copyright with us. Thank you.