A recent blog has commented on copyright reforms proposed at the Leadership Music Digital Summit. In particular, panelists at the seminar had suggested that copyright registration should become mandatory for those seeking copyright protection. At the Summit, registration was seen as a solution to many ‘copyright ills’ including the problems of 'orphan works'.

An orphan work is a copyright work for which it is difficult or impossible to find the copyright holder. This is especially problematic for those who would like to use the work and obtain a licence. Thus the argument is that by making registration a pre-condition for copyright protection, a list of all the copyright holders would be maintained and would provide users with easy access to all of the licensors’ names.

However, it is important to note the benefits of the current regime where registration is not a prerequisite to protection. Firstly, although to register a work costs only $50, I have noted in a previous blog that registration could become quite expensive for professionals who create copyrighted work to make a living. For example, a professional photographer who wants to register the thousands of photographs he takes each year would spend more to protect them than he could probably make by selling them.

Secondly, if registration is the only way a creator could obtain copyright protection then non-registered works would fall into the public domain for everyone to use without proper compensation to the creator. This could encourage copyright creators to look for alternative ways to protect their works such as secrecy or non-disclosure. This, in turn, might stifle creativity since less works and ideas would be in the public domain for future creators to build on.

Furthermore, compulsory registration might not be necessary to remedy the ‘orphan work’ problem since Canada has created a supplemental licencing scheme to address this issue. The regime allows the Copyright Board to license copyrighted works on behalf of unlocatable copyright owners. Although there are some conditions to be met, those conditions do not seem hard to satisfy.

The first condition that an applicant for licence must satisfy is that he or she has taken reasonable steps to locate the owner of the work. This condition would be met when a user has searched the Copyright Board records or various search engines and archives,  has requested information from professional associations in the field of the work, or has contacted copyright collective societies, etc. Between 1990 and 2009, the Copyright Board issued 233 decisions/licences; only seven applications were denied. None of those seven were denied on the basis that the owner had not done due diligence to locate the owner. In fact, the most common reason for not granting a licence was that no licence was needed in the first place. This was either because the 50-year copyright protection had expired or because the user of the work wanted to utilize an insubstantial part of the work.

The second condition a user must meet in order to acquire a licence from the Board is that he or she must ascertain that the work is published. The Board does not have jurisdiction over licences for unpublished works. The Board had denied only 3 applications on the basis of non-publication.

The last two conditions to be satisfied are that the work must be used in Canada and that the user is seeking only a non-exclusive license for a specific use. 

Thus the current regime offers ‘orphan work’ licences but such licences are

1)limited to a particular jurisdiction (Canada),

2) used for a particular purpose (non-exclusive license),

3) obtained only after specific conditions have been met (the work has been published and due diligence in locating the true owner was exercised).

Despite those limitations, the Canadian regime allows users to utilize a work that has an unlocatable owner. At the same time, all copyright creators are allowed to obtain copyright protection even when they have not registered their works. As already discussed, this encourages creativity and lowers the cost of protection. Thus the current regime achieves the proper balance between encouraging creativity and addressing the 'orphan work problem'.