Thinking Outside the (Legal) Box: IP Osgoode’s Orphan Works Licensing Portal Hackathon

The Event

Over the course of three days in early February 2016, IP Osgoode played host to the Orphan Works Licencing Portal Hackathon, a multidisciplinary and international event that resulted in a memorable proposal for an “Orphan Hunter.” While that may sound more like a discarded Stephen King draft than a solution to an important copyright issue, it is indicative of the creative and innovative thinking that drove the event.

I was lucky enough to have the opportunity to participate in the Hackathon, along with a number of other Osgoode students. Hosted by IP Osgoode and the Copyright and International Trade Policy Branch of the Department of Canadian Heritage, the event brought together stakeholders from various fields and institutions, including: libraries, archives, and museums, the Copyright Board of Canada, the United Kingdom’s Intellectual Property Office, and students from Osgoode Hall Law School and the Lassonde School of Engineering. Our “Design Hosts” were IP Osgoode Founder & Director, Professor Giuseppina D’Agostino and Margaret Hagan of Stanford’s d.school.

The event sought to take a design thinking approach to addressing the issue of works with unlocatable copyright owners (“orphan works”), which can currently be licensed to users by the Copyright Board of Canada, per section 77 of the Copyright Act. As such, much of the time was spent broken out into groups – made up of participants from various disciplines – which focused their attention on a hypothetical but specific user. The approach was something very unlike my usual experiences with law school and the law in general. Creativity was central to the process, and the legal perspective was only one among many to be considered.

 

The Process: Some Pretty Messy Creativity

My experience in my working group (one of half a dozen groups) really showcased for me the design-forward approach and its potential benefits in problem solving. Working with people from different stakeholder groups really makes you feel like a “beginner,” forcing you to consider their needs and concerns, which often place legal consideration well below others. Moreover, the focus on “failing quickly” kept us from getting bogged down in debates about why a solution would not work and instead encouraged brainstorming, creativity, and testing. While it was still frustrating to hear testers’ problems with a given prototype – usually barely cobbled together in time for the next “session” – you knew quickly if something worked or not, giving you a chance to leave it behind or fix it before having invested precious time and resources. It is easy to see why this approach has become popular in other disciplines (our computer engineer told me that Hackathons are regular occurrences in that sphere): solutions are responsive to the diversity of stakeholder needs and wants, it is easier to stray from traditional approaches, and little initial investment is required before an idea has been tested for feasibility.

The event also incorporated a group of very talented computer engineers from Lassonde. They were able to create highly successful mock-ups and prototypes that demonstrated the various group’s ideas, ranging from policy to practical applications. Our own group’s engineer was able to put together a visually striking and impressively functional website in mere hours. That process was impressive, and more importantly, I think, demonstrated the importance of technology and user-friendliness going forward in the legal realm. We have the technology and the people to do it; the legal profession and the justice system just need to embrace it.

 

The Results: One Question, Lots of Answers

The whole process was informed by presentations from representatives of the UK IPO and the United States Copyright Office (who joined us via Skype), giving us two very different models from which to draw inspiration. The UK launched an Orphan Works licensing portal in October 2014, inspired by the pre-existing Canadian regime. While their system remains in beta, it allows for on-line applications for licenses for the use of orphan works (including for commercial purposes) for licensing fees set in advance. The Canadian approach predates this, and relies on the discretion of the Copyright Board to deal with applications for licensing (the applications must show that reasonable effort was made to locate the work’s copyright owner and that the owner is unlocatable). Neither the Canadian nor the UK system has been much used; while neither denies many licenses, few are applied for and fewer are issued.

It is easy to see why orphan works licensing requires modernization – the systems that exist are little used, and as my group-mates who work in the libraries, archives, and museums field noted, they are forced to sit on hundreds of thousands, if not millions, of works whose authors are unlocatable. While the Hackathon may not have produced a game-changing breakthrough, which is not what it was designed to do in the first place, it did produce a number of diverse and creative proposals to deal with some of the issues surrounding orphan works, which reflects the value and potential of the design process.

From insurance schemes (“F’It”) to search tools (“Annie”) to identifying marks (“OWL”), and of course the winning “Orphan Hunter” bounty concept, participants approached the theme of the event with enthusiasm, creativity, and a willingness to move beyond traditional models. I was lucky to have had the opportunity to take part and I am genuinely hopeful that the success of such events will encourage similar approaches within the law school and in the broader legal realm.

 

Sebastian Beck-Watt is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

2 Comments
  1. In 2012, as part of the GTA Linux User Group responses to the Copyright consultation, I made a specific proposal re orphan works protected by DRM (encryption) schemes:

    “On cessation of publication, books become unavailable, with or without the presence of technological restrictions.

    As a new item of public policy, I propose that in such a case the copyright should by statute continue for no less than seven years.

    After this time, upon request by a member of the public, the National Library should advertise that copyright is deemed to have lapsed, and that it will offer the unrestricted copy within no more than one year. A copyright owner may then give notice that they have in fact recommenced publication, and if so the copyright deposit library shall advertise that fact and not release the unrestricted copy.”

  2. The public policy change is certainly a good way to deal with this issue. The problem with seven years is that you would never be able to get the author-side stakeholders on board.

    What I do think is feasible though, is some version of the sort of public notification system you mention. We have public notice in many ways which lead to “deemed notice,” for instance in the commercial sector, so it is not impossible that we could do something similar for those interested in using an “orphan work.”

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