Registration might not be the best solution for ‘orphan works’

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 societiesetc. 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’.

  1. The current orphan works regime may appear, on paper, to be reasonable. In practice, it tends to be unworkable on any larger scale. There is a reason why so few applications have been made for such licences: the cost, time, and work required to obtain them, are disporortionate to the benefit gained by using the work (a situation where US ‘fair use’ is sometimes of assistance).

    It is – of course – better than nothing. However, registration would be a much preferable system. Working with older US works shows how much more efficient a registration system is: only those works which the (c) owner wants to commercialize are registered – and only those where the return is expected to be greater than non-trivial (the amount for registration, which electronically could be on the order of several dollars). It simplifies locating the copyright owner, and lets lapse into the public domain those works not commercialized.

    Past US practice shows that there was no significant attempt at secrecy or non-disclosure because of these requirements.

  2. Hi Ernst,
    you mentioned that the cost, time and work required to obtain a licence is disproportionate to the benefit gained. Can you elaborate more on that? From your experience on average – how long would it take to obtain such a license? How much would it cost in terms of time and money?
    Thank you

  3. Hello Anna,

    The time depends on the nature of the media, but for more complex works such as film (where there are many layers of rights) searches can take days. Part of the problem is that a negative is hard to prove – therefore, it is not always clear when one is ‘done’. The time it takes to receive a decision can be several months. Compare this to non-orphan work licensing (the NFB recently cleared 700 films in 6 months).

    The cost depends on the structure of the client. If they don’t have resources to do the searches, and the legal team does them in their stead, the costs can be quite high. Furthermore, the Copyright Board typically requires payment to the respective Collective (whether the rights holder is found or not).

    These factors amount to this process not being particularly useful for a good deal of commercial purposes. As such, it is not surprising that so few applications to the Board have been made: potential applicants are using self-selection and not applying where there is risk they may not receive it, or where they gauge the resources required to obtain a licence as greater than the benefit obtain in using the work in question over another (including none).

    Finally, I would like to note that the law requires only “reasonable efforts.” “Reasonable” suggests that considerations of the facts at hand can be made in determining whether the standard was met. But it has been characterized time and time again as “due diligence,” which can convey a much higher standard (whether it actually is or not).

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