Absent a legal solution for the orphan games, archivists have to balance the risks. On the one hand, to not archive them risks their physical deterioration and loss to our cultural heritage, but does comply with copyright law.

On the other hand, to digitally archive the orphan games will preserve them for cultural heritage but there is a risk (maybe quite small but you can never be sure!) that the copyright owner might appear and instigate legal proceedings for copyright infringement.

Internationally the problem of orphan works of all types is now at a critical level – below I have summarised three of the more recent initiatives. (I’ve inserted a few comments in italics below.)

EUROPE

The EU Orphan Works Directive 2012 applies to uses made of orphan published works in the form of text, cinematographic or audiovisual works and phonograms by “publicly accessible libraries, educational establishments and museums, as well as archives, film or audio heritage institutions and public-service broadcasting organisations. (The Directive includes photographs only to the extent that they are incorporated into other works.) (It seems that the EU Directive would assist games preservation as they are considered to be audiovisual works in European law.)

The Directive applies to orphan works that were first published or broadcast in a Member State or, in the absence of publication or broadcast, which were first made publicly accessible to a museum with the consent of the rights holders in the territory of a Member State . (therefore the Directive could potentially apply to Australasian orphan works if they are in an EU institution, although for works originating from overseas the Directive also provides it must be reasonable to assume that the rights holders would not oppose the uses permitted by the Directive)

The Directive requires that a diligent search for the rights holders must be carried out in good faith in order to establish that a work is an orphan work.

The museum should record the results of diligent searches, any information on change in status of a work, and the use the museum will make of each orphan work following a diligent search. To prevent duplication of effort the information should be recorded in an online database which rights holders and the public from all member States can access. Orphan works which have been digitised and made available to the public in one Member State may also be made available to the public in other Member States

For audio visual works (such as a Videogame or a film)  and other works with several co-producers, the diligent search must be carried out for all possible rights holders and repeated if necessary  in any other Member State where one of the co-producers might be established.

What is a diligent search? The EU Directive suggests that Member States could refer to guidelines in the European Libraries Digital Initiative: http://ec.europa.eu/information_society/activities/digital_libraries/doc/hleg/orphan/guidelines.pdf

Note that the “one-size-fits-all notion of “diligent search” in the Directive has been criticised as failing to provide any reference to the level of search being proportionate or appropriate to the circumstances of the work. Finally, if a rights holder comes forward they can put an end to the orphan works status and also should be entitled to receive fair compensation for the uses made with their work.

UNITED KINGDOM

The Enterprise and Regulatory Reform Act 2013 (ERRA) makes provision for orphan works which originate in the UK. It is also intended to comply with the EU Directive. Perhaps the most important difference between the EU Directive and the ERRA is that the ERRA will allow commercial exploitation of orphan works. The ERRA also provides for the appointment of a licensing body which will be able to license individual users (for a fee), whether commercial or non-commercial, of orphan works, subject to prior diligent search.  Regulations (not yet in place) will provide more detail on the scope of activities to be carried out by the licensing body. Criticism of the process include that it requires an additional cost (ie plus the costs of the diligent search) which is payable up front for each work, whether or not an eventual rights holder appears to claim compensation.

Other differences include that the ERRA appears to include all works including photographs – thus it could be possible for any person who has carried out a diligent search to obtain a licence to use individual orphan photographs, even for commercial reasons. For this reason the ERRA was opposed by photographers.

The UK government explained that the requirement of diligence under UK orphan works schemes might operate in different ways in different sectors:  “diligent searches for complex works such as audiovisual works, which may contain moving and still new images, speech and music, will necessarily take more time than works with only one type of Copyright.”

The ERRA orphan works scheme does not exclude non-UK works. (so we could find the UK commercialising our orphan works before we can do so!)

AUSTRALIA

The Australian Law Reform Commission (ALRC) has recently released its report on Copyright law, including a chapter on the problem of orphan works. It recommends (note the recommendations are not law): The Copyright Act should be amended to limit the remedies available in an action for infringement of copyright, where it is established that, at the time of the infringement:

(a)   a reasonably diligent search for the rights holder had been conducted and the rights holder had not been found; and

(b)   as far as reasonably possible, the use of the work is clearly attributed to the author .

(in other words you could still find yourself paying up but only to a limited extent- likely to also depend upon whether your use of the orphan was commercial or non-commercial)

The diligent search    The Act should provide that, in determining whether a reasonably diligent search was conducted, regard may be had to, among other things:

(a)   the nature of the copyright material;

(b)   how and by whom the search was conducted;

(c)    the search technologies, databases and registers available at the time; and

(d)   any guidelines, protocols or industry practices about conducting diligent searches available at the time.

(ie Australia’s suggested diligent search requirement appears to be reasonably  flexible )

The ALRC also recommends that Australia introduce a fair use defence similar to the United States Copyright law. In  chapter 12 (libraries and archives) the ALRC suggests that fair use might allow cultural institutions  (not entirely sure who this will include) to undertake mass digitisation projects for example where they facilitate research and study, are transformative in nature, use material in the public domain, or are undertaken for non-commercial uses.

Comments?  Do you think any of the above might be a useful way to go? Should we also urge Australia and New Zealand to permit commercial uses of orphan works? Or do readers think we should simply proceed without waiting for the law and take a chance that no rights owner will come out of the woodwork to complain?