In practice the concept is applied in a de facto sense. Cultural collecting instiutions often take a risk management approach to dealing with copyright in works for which there is little prospect of identifying a copyright holder and/or little prospect of any income being derived from the work in question. For every such case, however, there would be many other cases whereby institutions are reluctant to take the risk, even for really old unpublished manuscripts. For example, our institutions are full of unpublished letters that are well over 150 years old written by people like Sir Joseph Banks, Carolyn Chisholm and John Macarthur – people for whom, with enough effort, there is a reasonable chance that a copyright owner might be identified. Tracking down such copyright owners can be incredibly resource intensive, so the choice is then either invest your scarce resources in an arid and legalistic exercise, or take the easier path of just not releasing the content in question. You can guess what usually happens under these circumstances.

Finally, in response to Mike Nelson, I should point out that our public collections are full of copyright material that is not publicly but rather is privately owned. The administrators of Commonwealth Copyright have no legal power to give permission for such content to be reused.

I know this was discussed some years ago. I work in agriculture sector and we have large archives of materials, including video, images, maps, data sets, laboratory books which we want to release as archive research information. I know orphaned works was being discussed for audio-visual materials, and surely this could be used when the author is not traceable or knowable.

Everyone wants a solution – but they need:

- better funding – to digitise, to clear copyright, to create sustainable business models based on open access
- better legislation – orphan works (including manuscripts) has got to be the single biggest problem for most archives. If Google and publishers can come up with an answer, why can’t the legislature?
- recognition of access and reuse as a KPI – at the moment, it’s things like sales that drive most archive’s funding – which is not what our archives should be about.

Anyone interested in this topic should check out our Opening Australia’s Archives project (http://www.ip.qut.edu.au/opening_access_to_australian_archives). We’re running meetings on how to address this problem around Australia over the next couple of weeks. The more the merrier.

It is hard work tracing a copyright owner after a couple of generations in an environment where no concept of copyright even existed to be noted in a will 50 years ago.

Even a redefinition of the term unpublished might provide for just some of the material held to be published on the web.