Fail early. Fail often. For lawyers and law students, failure is anathemal; but, in the context of design, failure is a valuable learning tool. For three days starting February 3rd, innovators, law students, and stakeholders in the creative industries descended on Osgoode for IPOsgoode's second annual hackathon.

For the uninitiated: a hackathon is an event where designers, developers, and industry stakeholders form teams and work together to prototype solutions to a specific common problem. Hackathons are competitive, and teams must pitch their prototype to a panel of judges. Participants of the orphan works hackathon gave updates during the day using the #iposgoodehack hashtag.

For this event, IPOsgoode brought together minds from across the creative community, law, engineering, and academia to design solutions to the orphan works issue. Orphan works are those works protected by copyright but whose rights-holder is unidentifiable, or cannot be located and contacted. Many creators--including authors, historians and documentarians--face challenges to use orphan works in their own creations. This challenge represents a market failure, since creators are willing to secure licences for the works but do not or cannot because the expense of identifying and/or finding the authors is too high. This leaves many unique and valuable works out of historical works or other downstream creative works that might re-use them.

Canada currently has a supplemental licensing regime for orphan works under s.77 of the Copyright Act. However, this scheme does little to assist the due-diligence challenge faced by creators when attempting to use orphan works. To earn a licence, a due-diligence search must be conducted; but, it may be a futile and fruitless search for something non-existent. Furthermore, many Canadian archives do not have digitized collections and due-diligence searches must be conducted by hand, or using a network of personal connections.  Orphan works was an ideal hackathon problem, having numerous dimensions (legal, technological, policy, scalability) and stakeholders, as well as the availability of international solutions for comparison, and the potential for many open-ended solutions.

One solution that was reviewed during the event was the UK Intellectual Property Office (IPO) orphan works register and orphan works licensing portal. This tool asks users a series of questions about the work, its intended use and then creates and prices a statutory license.  This allows a streamlined way for users to incorporate potentially orphaned works into their own creations.

Participants of the hackathon included representatives of the IPO along with the Canadian Copyright Board, Canadian Heritage, Canadian Intellectual Property Office, US Copyright Office, and the Lassonde School of Engineering. Leadership on the design process was provided by Margaret Hagan, a fellow at Stanford Law School’s Centre on the Legal Profession and a lecturer at Stanford's d.school.

The first day and a half of the event was dedicated to finding the scope of the problem. Midway through day two, the event shifted from analysis to creative problem solving and solution design. And, at the end of day two, solutions to the problem were pitched to an esteemed panel of judges including Justice Roger Hughes of the Federal Court.

The final day of the event focused on building functional demonstrations of the solution in action, a business plan, and a budget.  Ideas and designs from the first day were updated based on feedback using an iterative process. As a participant, this was the most exciting moment of the hackathon, as the focus on "what can we make to solve the problem" became "what are the hurdles we face in making this demo into a living thing".

The demonstration of Orphan hunter (pictured above) won the hackathon's best prototype. The app, a tongue-in-cheek design using a gamified bounty system incentivizing individuals to complete due-diligence searches won over the judges after a strong iteration (and fully functional demo) on the second day. Credit goes to Jordan Fine, Mark Harris Evans, Zorn Pink, Mark Kohras, and John Lee. Their solution included a professionally made demo video explaining how someone might use Orphan Hunter.

Paul Blizzard is a JD Candidate at Osgoode Hall Law School. Twitter: @paulblizzard.