Good Faith & Orphan Works Statements

STATEMENT OF GOOD WILL

Untitled.Showa is a project that attempts to collectively find ways to return 308 orphan photographs, and 20 documents/paper objects to either the individuals in the photographs, their family/ies, its copyright holder/s or to find an appropriate archive for them.

The website https://untitled.showa.com.au/ is an online portal which displays these photographs and documents/paper objects, and calls for, and enables those interested to participate in researching ways to return them in good faith.  Online and physical research workshops will be provided for groups who wish to conduct the research, which include providing legal information and ethical foundations. Untitled.Showa web master moderates and approves/disapproves all comments made on its website and forums to maintain good will.

Untitled.Showa welcomes all communications, and would like to be notified by:

  • The copyright holder/s
  • Individuals in the photographs or those mentioned in a document/object in the collection
  • Family members of the individuals in the photographs or those mentioned in a document/object in the collection
  • Individuals or organisations who know who the copyright holder should be (such as an heir)
  • Individuals or organisations who know anyone in the photographs
  • An institution interested in archiving the photographs.

Upon notification, verification, and consultation, Untitled.Showa aims to:

  • Exclude the particular image from the website and all related activities unless the people in the photographs, their families or the copyright holder wishes to have the particular and or all images continue to be included. In practical terms, this will result in these particular images being removed from the website and all related activities, and replaced with the text, “Reunited”.
  • Return the original found print.
  • Add a copyright notice on particular and or all images if the copyright holder wishes to have their images remain on the website and included in all related activities.

POSITION STATEMENT: ORPHAN WORKS

Orphan works are in-copyright works where the creator cannot be identified and/or located, which makes obtaining permission to use impossible. Orphan works cover all formats (analogue and digital).

Photographs displayed in Untitled.Showa are orphan works. Although the initial copyright holder/s probably are deceased, due to the estimated dates when the images were created, there would most probably be legal copyright holder/s today. Untitled.Showa as a project seeks to locate these copyright holder/s.

Untitled.Showa anticipates and welcomes ongoing copyright reform to improve access to orphan works. Untitled.Showa supports the introduction of legislative reforms in Australia to modernise the Copyright Act 1968 (Cth) and to address the issue of orphan works so that both institutions and individuals have the right to freely and fairly use orphan works following a reasonably diligent search for the rights holder. Untitled.Showa further advocates the adoption of a limited liability scheme for both institutions and individuals provided a reasonably diligent search has been undertaken, and the use is in good faith.

The Government has proposed a limited liability scheme for use of orphan works. The proposed reforms were announced by Hon Paul Fletcher MP, Minister for Communications, Cyber Safety and the Arts, on 13 August 2020.

Currently, the Act does not provide an exception or defence for orphan works specifically. A fair dealing exception exists; and covers the following:

  • research or study
  • criticism or review
  • parody or satire
  • reporting the news,
  • or giving legal advice.

The proposed reform to the Act sets out the introduction of a limited liability scheme for use of orphan works. This scheme will allow the use of copyright material where:

  • a reasonably diligent search has been undertaken, but the copyright owner cannot be identified or located;
  • and as far as reasonably possible, the work has been clearly attributed to the author.

DILIGENT SEARCH

Untitled.Showa advocates undertaking a reasonably diligent search for the rights holder before using an orphan work. In keeping with international practice, a reasonably diligent search may be scalable or modified as appropriate to the context and intended use of the material.

Untitled.Showa as a project aims to find the rights holder/s of the collection of orphan works. In practice, Untitled.Showa has made reasonable searches with the amount of information on and about the work that were initially available, and is continuing to make searches into locating the rights holder/s of the works through the Untitled.Showa project, which provides a greater level of resources, professional expertise and public exposure. Although this will not change the copyright protection of a work, Untitled.Showa believes that widening parameters for a reasonably diligent search provides a practical solution, as this will provide opportunities, through public exposure, to reunite rights holders with their works.

Quantifying the search effort will be dependent, but not limited to, criteria such as:

  • the amount of information on or about the work that is initially available
  • the age and uniqueness of the work
  • the prominence and extent of the use of the work
  • whether the work is of a commercial nature.

Untitled.Showa as a project is not of commercial nature, and the orphan works nor any derivative artworks are not for sale, and research workshops are free of all charges.

POSITION STATEMENT: RIGHTS OF PUBLICITY AND PRIVACY

Rights of Publicity and Privacy protects individuals from unauthorised usage of their image. Photographs displayed in Untitled.Showa are unauthorised. Although many individuals photographed may have deceased, others may be alive today.

Untitled.Showa aims to find those individuals in the photographs or their families, and if successfully found, return to those individuals, the original print, and these particular images removed from the website and all related activities, replaced with the text, “Reunited”.

Although currently there are no specific laws in Australia and Japan which protect the rights of individuals from unauthorised public display of their image or belongings, Untitled.Showa supports the right of the individual to:

  • Not be defamed
  • Not to be misrepresented
  • Life, liberty and pursuit happiness

Untitled.Showa takes caution with good will at all times to not to cause injury to someone’s reputation, to mislead or deceive through use of a person’s image, belongings, and to hinder life, liberty and pursuit happiness.