Copyright, and the Regulation of Orphan Works: A Comparative Review of Seven Jurisdictions and a Rights Clearance Simulation

Abstract

A comparative review of seven jurisdictions and a rights clearance simulationIntellectual Property Office is an operating name of the Patent Office 2013/31Research commissioned by the Intellectual Property Office, and carried out by:Marcella Favale, Fabian Homberg, Martin Kretschmer, Dinusha Mendis and Davide Secchi This is an independent report commissioned by the Intellectual Property Office (IPO). Findings and opinions are those of the researchers, not necessarily the views of the IPO or the Government. Where we have identified any third party copyright information you will need to obtain permission from the copyright holders concerned. © Crown copyright 2013Any enquiries regarding this publication should be sent to:The Authors are cited in alphabetical order.The Hargreaves Review stated: "The problem of orphan works -works to which access is effectively barred because the copyright holder cannot be traced -represents the starkest failure of the copyright framework to adapt." (Digital Opportunity: A Review of Intellectual Property and Growth; London: Intellectual Property Office; p. 38) This report was commissioned by the Intellectual Property Office to support the implementation of the Hargreaves Review. It aims to offer a clearer understanding of how orphan works are regulated and priced in other jurisdictions, and how a pricing system could be structured to ensure that "parents" are fairly remunerated if they re-appear, and users are incentivised to access and exploit registered orphan works. 'Orphan works' are works in which copyright still subsists, but where the rightholder, whether it be the creator of the work or successor in title, cannot be located. ContentsThis report was commissioned to assist the UK government in evaluating policy options in the implementation of the Hargreaves Review of Intellectual Property & Growth (2011) to enable and price the use of orphan works.The research proceeded in two stages. Study I undertook a comparative international review of actual or proposed orphan works legislation, and identified key characteristics of orphan works licensing schemes. Study II investigated the potential effects of such schemes by conducting a simulated rights clearance exercise for six scenarios (establishing licence terms and fees for specific commercial and non-commercial uses), and analysing the resulting dataset for effects of the characteristics identified in Study I. I. Comparative ReviewThe comparative review relied on a close scrutiny of actual or proposed legislation and considered government reports, draft bills, publications and other commentaries on the orphan works issue. The countries reviewed included jurisdictions with operational orphan works regulations: Canada, Denmark, Hungary, India, and Japan; as well as provisions at the EU level and in the US (draft legislation and current practice). The purpose of the review was to identify key features of legal regimes with respect to factors such as -(i) categories of works covered; (ii) standards of diligent search; (iii) t...

Copyright and Mass Social Authorship

“…In recent times, ‘ex post’ solutions for minimizing users’ litigation risk have been considered in the context of the difficulties of clearing rights in ‘orphan works’, that is, copyright works where the rights owner is unknown or known but untraceable. These solutions have included statutory limits on remedies where the user has acted in good faith or the payment of a reasonable royalty into escrow for later release to a reappearing rights holder (Favale et al, 2013: 2). The NED story suggests that analogous approaches might be one component of the solution to another instance where rights clearance is unfeasible, where the scale of a mass social authorship project make it to use the words of Furnivall in 1878, ‘impossible … to get the signatures of all our contributors’ (Note from Furnivall to Murray, 30 July 1878, annexed to letter from Freshfields to Furnivall, 29 July 1878, MP Box 3).…”

“I should like you to see them some time”

“…In intellectual property policy, Favale et al (2013) One limitation of the study by Favale et al was that prices were obtained only for licences granted by central authorities. Because orphan works use-cases were hypothetical, the authors were not able to gather reliable data on the costs of determining orphan status of works within and across collections.…”

“…In intellectual property policy, Favale et al (2013) employed a live simulation approach to studying the cost of copyright licences for both commercial and non-commercial use. The researchers designed a series of hypothetical orphan works scenarios (e.g.…”

Orphan Works Situation Under Canadian Copyright Act

“…8 Moreover, in the case of granting a licence to make use of unpublished works, privacy rights issues can be raised. 9 In addition, the Copyright Board of Canada has no legal system over works for which the publication status cannot be confirmed. Nevertheless, the Copyright Board has often presumed that a work has been published if decisive evidence is hard to come by but the circumstances indicate the likelihood of publication.…”