Exploring the problems as to orphan films in Australia: a doctrinal, empirical and cost-benefit analysis

Abstract

This thesis explores the problems as to orphan films in Australia. The orthodox conceptualisation of orphan works as a purely legal problem neglects the social properties of the positive law. Practically, it is largely memory institutions who play an important role as ‘gatekeepers’ that determine the use of or access to orphaned material, rather than the positive law as such. To identify whether there is a need for a law reform option to redress the problems with orphan films in Australia, it is necessary to identify how the existing law operates in practice in the first place. This thesis opens up that terrain, examining the real nature of this perceived problem, focusing on an exploration of the practical role of copyright law in regulating orphaned material.

Three methodological tools are used to elucidate the nature of the problems as to orphan films in Australia. Doctrinal analysis is used to clarify the actual legal situation of orphan films under Australian legislation. Empirical analysis exposes how the existing legal policies as to the use of orphan films practically operate within Australian memory institutions. By examining the relationship between existing laws, policies, and current practices, the real nature of the problem as to orphan films in Australia emerges. After that, cost-benefit analysis is used to explain the consequences of this perceived problem.

Based on the above-mentioned doctrinal, empirical, and cost-benefit analysis, it is ultimately argued that the problem with respect to orphan films in Australia is in nature a cultural problem that requires an improvement of relevant institutional practices, rather than a purely legal problem with a need for a legislative solution. A law reform option is not as necessary as the existing literature suggests.