Aaron Dishy is an IPilogue Writer and a 3L JD Candidate at Osgoode Hall Law School.

Pope Francis’ “” followed the spiritual leader during a week-long trip across Canada. He apologized on behalf of the Roman Catholic Church (the “Church”) for abuse that Indigenous children and communities endured (and ) at church-run residential schools. The tour, and the it garnered, confronted Indigenous and Settler Canadians with the ongoing relevance of that Church in informing the lived experiences of Indigenous Peoples in Canada.

Legal professionals acting on behalf of residential school survivors and their communities may require awareness of the primary sources that drive Church action. Those documents are collected, digitized, and (on some occasions) made accessible by the (“VAL”) and its affiliated . Their digital collections encompass millions of manuscripts, printed materials, incunabula, visual materials, and photographs. Although only a small fraction of those records are publicly available - with many records considered - the capacity to navigate those resources may be valuable for legal context and understanding for afflicted individuals and communities.��

In-house digitization began at VAL with the launch of the in 2010. This project looks to digitize VAL’s entire manuscript collection, as well as 80,000 Church codices within 40 million scanned records. Those records are archived for long-term preservation using the and for metadata preservation. VAL’s digitized manuscripts are then organized by fond - archival-speak for a subcollection. Some fonds, such as the “”, are brought from collections by smaller libraries and archives within the overall Papal organization. Others, such as “” are donated by persons external to VAL.

Apart from the digital records made available on , databases outside of the Church also play an important role in navigating VAL’s records. For example, thousands of Latin manuscripts are digitized and made accessible online only through of the Heidelberg University. Similarly, the based in Frankfurt, Germany, provides comprehensive information about Vatican records that concern Roman and Feudal law. Further, founded by the late Jean-Baptiste Piggin and scholar Aaron Marks, tracks the manuscripts that are added to VAL’s digital collections each week.

Each archival effort helps to develop an increasingly comprehensive account of the documentary heritage of the Church and its detrimental impact on diverse spiritual communities. Legal professionals would be wise to harness these resources when helping individuals and communities understand their own history with the Church.

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In essence, through its bi-lateral agreements with the , Google would acquire books from the library’s collections, which it would then digitally scan and translate into a machine-readable text. This machine-readable text would allow users to search for key words or terms and be provided with a list of all books in Google’s database in which those terms appear, as well as the number of times the word or term appears in each book.

According to , this index-like service instantaneously provided the public with vital information about books that “would otherwise not be obtainable in lifetimes of searching” without “providing the public with a substantial substitute for matter protected by the [Authors Guild’s] copyright interests in the original works or derivatives of them.” The Authors Guild took issue with this and contended that permitting users to read portions of the book, through Google’ “snippet function” service, was not a “transformative use” as articulated in

The Court reiterating the essence of , stated that “the more the appropriator is using the copied material for new, transformative purposes, the more it serves copyright’s goal of enriching public knowledge and the less likely it is that the appropriation will serve as a substitute for the original or its plausible derivatives, shrinking the protected market opportunities of the copyrighted work”.

In the case at hand, the Court found the ability for users to search millions of books for a particular term of interest was transformative and that the information displayed by Google was intentionally limited to ensure that the search results did not provide for a substitute of the original work.

Not everyone is in complete agreement with the Court’s interpretation of “transformative use”, according to , “Google Books is not the digital equivalent of a library card catalogue or even a CliffsNotes summary of each text, but a full-text compendium of all the books Google scanned….Google has not transformed the text of the books in any way—indeed maintaining the full text exactly as published is necessary and essential for the service to function”.

The Author’s Guild shared similar sentiments and hinted at appealing the ruling and hoped that the Supreme Court would correct the Court’s “”.

Unfortunately I will have to part ways with Mr. Parness and the Authors Guild and argue that the Court came to the right decision - sufficiently balancing both the interests of the public and those of the authors. The search services provided by Google are tremendously useful to researchers, students, and to the public at large, and at law, the conduct falls squarely in the realm of non- infringing fair use.

Although I am persuaded by this argument, I am also sympathetic to the concerns raised by the Authors Guild, (which were dismissed by the Court); namely that, despite the , rights-holders would be placed at risk of hacking, which could lead to the widespread unauthorized publication of their works on the web, resulting in the devaluation of their copyright. The cybersecurity threat is very real, as we have learned over the , but unfortunately, the contained within the Copyright Act is not the optimal (or even recommended) tool to combat the risk of future online infringement. It will be interesting to see whether or not the Supreme Court of the United States considers this issue, if it decides to hear the case, and conducts its own fair use analysis.

Mahdi M. Hussein is a JD Candidate at Osgoode Hall Law School and is enrolled in Osgoode’s Intellectual Property Law Intensive Program. As part of the program requirements, students were asked to write a blog on a topic of their choice.

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, the United Kingdom (UK) communications regulator, topical data on digital downloads that violate copyright regulation. This study, based on market research with a sample of over 5,000 individuals, is an expansive and reliable glimpse into the downloading habits of internet users. The key findings are:

• One in six (17%) UK internet users over the age of 12 downloaded at least one piece of illegal content over the three month monitoring period
• 4% downloaded exclusively illegal content
• The top 10% of infringers were responsible for 79% of all illegal downloads
• Men are more likely to download illegal content than women
• Those under 34 years of age are more likely to download than those 34 and older
• Movies were illegally downloaded more than any other type of content
• uTorrent was the most common platform used for illegal downloads
  
  

Context and Methodology Analysis

To provide some context, these overall rates are lower than some of the hype would have us believe. As someone who has been following illegal downloading trends since the inception of the technology, I was surprised and delighted that fewer than one in five people download illegal content.

But it's not all good news. The age bias could indicate a darker hypothesis that I've held for many years - that the more technical capability individuals have, the more likely those individuals are to download illegally. Torrenting or competing methods require a sophisticated knowledge of the internet that is statistically less likely to be held by older users. It's possible that baby boomers are purchasing their movies on iTunes simply for the ease-of-use and straightforwardness of the service. Unfortunately, this hypothesis is immensely difficult to prove. As a former market researcher, I'm cognizant of the response bias that surveyed populations have when it comes to answering questions about their propensity to participate in illegal activity. Regardless of how solidly the questions were drafted, people would under-report their likeliness to illegally download copyright protected material.

This is the brilliance of the methodology employed in the Ofcom study; monitoring actual behaviour rather than asking participants to report behaviour leads to greater accuracy. The study is also methodologically sound because it has a large sample size, and a sample size recruited in multiple different ways.

It also goes above and beyond traditional polling techniques in one other important way. Eighteen years and older is a common way to begin a population sample; however, as this study confirms in its decision to include participants as young as 12 years old, practical internet studies should include teens and pre-teens in order to be as accurate as possible. Teens use the internet extensively - both while mobile and at home - and so they should rightly be included to assess internet usage behaviour by the population as a whole.

One caveat to the sample, and perhaps an obvious one, is the regional bias. The sample is entirely drawn from the UK and as such, the data is only truly representative of that area of the world. While this data may also be directionally representative for Anglophone Western countries with similar internet penetration rates, it would not be a useful reference when looking at many other countries and regions around the world.

Conclusion

Ofcom's work is incredibly important here. There is simply no replacement for reliable, open, and accessible data. Moreover, this study is ongoing, which provides valuable benchmarking and trend tracking. For Canadians reviewing the research, this study raises the natural question: what exactly is the Canadian Radio-Television and Telecommunications Commission (CRTC) doing research-wise? The answer may surprise you. They do, in fact, provide some statistical information regarding .

But they can do more, and they can do it better. Canada deserves a high-calibre, internet-usage think-tank akin to the United States' . Up until now I've always envisioned it to be executed by StatsCan, but perhaps the CRTC is a better fit to take on and drive this project. Canadians need more accurate data collection about our internet penetration, usage, and most importantly, the way it is impacting our daily lives.

Ultimately, in my opinion, the important question isn't how many Canadians are downloading illegal material. The core question is: are we trending toward more or fewer illegal downloads? And if we are trending upward, such a finding is a fundamental starting point to launching a much-needed national debate on piracy in Canada.

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This year several high profile artists spoke out against, or withdrew from streaming services. In June, the members of Pink Floyd against Pandora’s attempts to decrease the royalties that streaming services pay to the artists in their libraries. In Early July, Thom 91��ɫ his music from Spotify. The Radiohead front man claims that the site’s business model does not properly compensate new artists. In late July, Aimee Mann filed a against MediaNet. The claims allege that MediaNet’s library includes a number of improperly licensed works and further claims that Mann has not received a royalty payment from the entity since 2006.

Before the industry can expand, streaming services must resolve their licensing problems. In 2011, ASCAP reached a U.S. with Spotify, granting the site access to over 8.5 million songs in the ASCAP catalogue. In that same year, however, over indie labels withdrew their catalogs from several streaming services, including Spotify, Napster, Simfy and Rdio over concerns of under-compensation and for the fear that streaming would hurt sales for smaller artists.

Streaming services rely on artist participation and licensing agreements. These relationships must be stable in order for streaming to truly take off as an alternative to traditional radio, or services like iTunes. If artists do not have faith in the current business model, then it will be difficult for streaming services to expand. When popular artists publicly decry the system, it can sour potential relationships both with new users and artists who have yet to licence their music.

Some streaming services argue that the barrier to expansion is the cost of royalty payouts. Pandora��a Canadian expansion in 2007 due to the cost of royalty payments in Canada. , “the rates that have been proposed by the Canadian music rights societies are simply uneconomic.” ��In addition, the current tariff rate may not be set until several years into the future. For example, one����on streaming services for the period from 2008-2010 did not receive certification until 2012. It may be difficult for a service to accurately gauge their viability in a new market if they may end up paying a substantially higher royalty rate than initially anticipated.��Services may simply be unwilling to expand without certainty regarding these tariff rates.

While radio tariffs account for the fact that one play of a song can reach a large audience, on streaming services each play generally only reaches one user. Therefore the amount paid out for each play is much smaller. For example, one artist only received $1652.74 for����plays on Pandora. If these services increase in popularity, then perhaps the number of individual plays may eventually lead to payouts that resemble those for current radio rates.��The t from Pandora is that lower royalties now will mean long-term higher payouts. Lower royalties would allow services to pour more money into development and advertising. If services expand in size, then although the rate is lower the actual amount will increase due to the increased volume of traffic on the services.

Organizations that collect royalties for Canadian rights holders feel that their proposed rates represent . In fact, in the U.S. over signed an open letter opposing Pandora’s lobbying attempts to lower royalty rates. Moreover, despite Westergren’s assertions, Songza successfully negotiated a private to licence music from Re: Sound and launched its “music concierge” playlist streaming service in Canada in 2012. Therefore there is potential for other services to come to an agreement in Canada, but the question remains whether royalties will present a problem for their bottom line.

Sadly, the string of artist complaints and withdrawals from several popular streaming services may temper online music streaming services expansion to Canadian markets, and the growth of the industry in general. Licensing agreements are a tremendous initial cost required to build a library expansive enough to attract users. If the relationship with artists remains unstable and services are unable to retain a diverse library, then attracting users to pay for these licences through subscriptions becomes a more difficult task. As a relatively small market, with the potential for retroactive tariffs, we may have to wait for the business model to further develop and grow before Canada enjoys the variety of services offered in other jurisdictions.

Allison McLean is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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The post IP Osgoode Speaker Series: Douglas Pepper Video appeared first on IPOsgoode.

Beginning by acknowledging the recent “seismic shifts in the publishing industry,” Mr. Pepper added that these changes were the result of numerous factors – including, but not limited to the market trends started by online booksellers like Amazon, and the “conglomeratization,” or the phenomena of larger book publishers buying up smaller ones. A third factor, according to Mr. Pepper, has been the decline of traditional book media itself – where the coverage of noteworthy books just isn’t done as often anymore. Due to the economic limitations and readership crises it faces, the newspaper industry doesn’t seem to have as much print space as it used to. All along, the Internet has stepped in to fill the physical printer’s shoes, and it seems that publishing houses, and by extension, the larger industry itself, has turned to the World Wide Web for the marketing, dissemination and sale of books. Mr. Pepper’s message was that books themselves are not in any danger of disappearing; it is merely the means of their conveyance to the world that are changing, attuned as the industry is to the needs of an increasingly intangible world.

E-books have also been instrumental in opening books, and specifically, the long form novel to readers across generations, according to Mr. Pepper. The e-book, by making its home on tablets and e-readers across the country, has become an enabler of the written word, rather than its arch nemesis. “People who would have never thought about going into a book store are now reading, through e-books,” noted Mr. Pepper. Ultimately, it seems that the novel itself is an undying art form, and e-books and online media are only serving to pique the interest of a previously untapped audience.

On the legal side, Mr. Pepper emphasized that the book publishers in general are concerned about the online piracy of books, and the general consensus is that the author’s copyright in the work should be protected; this was consistent with Mr. Pepper’s earlier hat-tip to authors as being the “ones with skin in the game.” Using the music industry’s handling of piracy as an example, Mr. Pepper stated that publishing industry’s management of similar issues has to be different, mostly because the target pirates are, in themselves, different. “Teenagers do not pirate War and Peace like they pirate music,” said Mr. Pepper, while also reminding the audience that, at heart, both industries have one common goal, which is to protect copyrighted material.

The talk then turned into an interactive discussion, since Mr. Pepper seemed eager to understand the collective psyche of the people present in the room, and opened the floor up by shooting an inquiry of his own to the audience, asking, “Where do you find your books? What do you read? And what do you discuss around books?” He then patiently answered queries for over an hour. The range of questions asked were certainly reflective of the audience, which included students, librarians, writers, lawyers and members of authors groups. Mr. Pepper first addressed the question of the publishing industry’s relationship with “entrepreneur authors,” or those writers who already have a sizeable audience before being signed onto a publisher’s roster. He pointed out that while a strong online following built through social media can be a definite asset to an author’s print sales, he also believed that the publisher-author relationship was defined by other factors such as the financial security, marketing and editing support that the former provided to the latter, implying that social media and self-marketing techniques are often lacking in these functions. Some aspects of the traditional mechanism, such as the acquisition of books and the publishing process are still relevant, and are becoming a part of the e-book industry as well. When asked if the current publishing model should change, especially since the business side of it (a fixed price for a copy) might not always mesh well with the technology (an e-book is tethered to the device it is attached to and thus, limited in distribution potential), Mr. Pepper admitted that while there are emerging challenges to the current model, certain core aspects should remain unchanged, and the industry’s “flux period” as it now is, would need to rely on “tried and true formula[e]” to navigate the changing landscape of the Canadian publishing industry.

Editor's Note: A link to a recording of Mr. Pepper's talk will be made available soon in the��.

Mekhala Chaubal is a JD candidate at Osgoode Hall Law School.

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(Sun) Salutations: Yoga from Which People, Again?

Though litigation around ��seems to have settled into Savasana (“corpse pose”) for the moment, certain legal issues it raised remain live as a Vajrasana-struck wire. Austen's tart (and somewhat doctored) observation aside, the notion of copyrighting a practice as historically and culturally steeped as yoga provides a timely platform from which to explore the intersection of intellectual property law and traditional knowledge, an issue particularly relevant to Canadian IP lawyers in an Aboriginal rights context.

In Bikram’s Yoga College of India v Evolation, lawyers in California sparred over doctrinal reasons to grant or withhold copyright, necessarily assuming a starting point that ignored the larger backdrop of another battle occurring in the �� yoga community, fought under the Hindu American Foundation's (HAF) banner of “”. Rather than highlighting distinctions between utilitarian and non-utilitarian works, form and expression of a system, or choreography, sports, and exercise, Take Back Yoga's entreaty for yoga practitioners to recognize its roots in Hinduism raised an arguably even more fundamental question: on what basis was a spiritual practice rooted in thousands of years of Indian culture and history being subjected to an legal ownership framework to begin with?

Just as some questioned Choudhury's right to copyright yoga, one might question American yoga practitioners' right to unilaterally that yoga “is a gift to all mankind, and thus beyond claims of ownership and copyright”. The and �� to the Take Back Yoga campaign are outside the scope of this article, but the storm among the calm brought to the forefront larger issues of , including , assisted by the territorial nature of intellectual property laws. The cases of , , and all illustrate this phenomenon. While it so happens that the Indian government agrees with keeping yoga and other cultural heirlooms “”, so to speak—hence the and �� to assist ��—this is far from a stance. Which brings us to Aboriginal traditional knowledge and cultural property, and its relationship with Canadian intellectual property law.

An IPR by Any Other Name: Aboriginal Cultural Heritage and Traditional Knowledge

As no amount of textual yoga would fit this topic adequately into a single post, the following will be limited to highlighting specific issues and potential solutions in applying intellectual property law to the protection and preservation of and in Canada. Many of the concepts presented may apply in other cultural contexts, as well.

I. Knowledge is Power...and Property

First, traditional knowledge, according to a citing (full disclosure: a professor at the University of Victoria), includes “folklore, traditional knowledge, innovations and practices; music, songs, dance for entertainment or education; graphics, designs, crafts, textiles, paintings and three dimensional arts; signs and symbols.” What is critical, however, is “the integration of these features into a cultural system”. Appropriation is not just unauthorized taking, but taking in part through the , as implied in HAF's complaint regarding yoga.

While conventional intellectual property law mechanisms may provide protection to some extent, they often fall short where practical realities clash, or where foundational rationales underlying such laws fail to align with those of Aboriginal perspectives towards what Canadian law considers property (whether intellectual, cultural, tangible, or intangible).

II. Not Seeing IP to IP

of such incommensurability as indicated above include: Canadian IP law tends to focus on individual authorship or ownership as opposed to communal or collective ownership. IP rights such as copyright, patent, and industrial design have set limitation periods, while family crests under certain Aboriginal laws or customs, for example, would necessitate perpetual copyright or trademark, at the risk of inducing severe offence and humiliation for some. There would likely require a significantly higher emphasis on strict moral rights than Canadian jurisprudence has shown. Furthermore, it would be difficult to look back in time far enough to confirm criteria such as originality (copyright), use (trademark), or prior work (patent) within hundreds of years of history, not to mention the inapplicability of premature disclosure to communal patent claims. Oral traditions would pose a challenge to the fixation requirement in copyright.

There are two overarching issues in addition to the above. The first is the fact that Canadian intellectual property law is based on an innovation-driven commercial bargain at heart, whereas much traditional knowledge and cultural property is often inherently non-commercial and not necessarily primarily innovation- or “progress of science and useful arts”-driven, involving completely different purposes and having emerged within vastly different contexts. The second is potential conflict of law matters between Canadian law and Aboriginal self-government, where the treatment of and laws surrounding cultural property and traditional knowledge is concerned. speaking, provide even less protection than domestic laws, with additional difficulties in trans-border enforcement: see for examples from Cuba, the Maori in New Zealand, and the Nisga'a in British Columbia; and for a case study in repatriation of a Nuxalk Nation mask.

III. Progress of Sui Generis and Useful Laws

The legal field has put forward a number of potential or partial solutions to some of the above issues. The , for instance, provides a comprehensive overview of cultural property protection strategies available in copyright, trademark, and patent law, as well as their limitations. Two other possibilities stand out, however, and would be worth further pursuits: sui generis legislation and legal pluralism.

Sui generis legislation recognizes the unique nature of traditional knowledge and cultural property, relative to conventional intellectual property for which Canadian IP law was made. For examples, WIPO has compiled a on traditional knowledge from around the world. Interesting theories supporting sui generis approaches to traditional knowledge are (1) the idea that terminology for an oxymoronic initiative that sterilizes rather than preserves and (2) the notion that the intangibility and fluidity of culture requires approaching traditional knowledge as an , with ecologically minded protection strategies. One remarkable example of a sui generis model in action is the collaborative in Fiji.

Legal pluralism may overlap with both sui generis laws and Aboriginal self-government, in the sense of opening up normative Canadian intellectual property law to accommodate forms of law that are more suitable to serving the needs of cultures that wish to protect their respective traditional knowledge and cultural property. above discusses this approach. For a specific example, see Lucy Mary Christina Bell's study of the and her application of their ceremonial customs to intellectual property and traditional knowledge disputes.

To conclude, one might consider a suggestion by Val Napoleon (disclosure: also at the University of Victoria) as cited in : part of the problem may be the relegating of all traditional knowledge and related concepts to the category of “cultural” to begin with, making such claims “disembodied from its political, social, economic, and legal moorings within their societies [and thus causing] displacement of property from that which gives it meaning and coherence[, which] hinders efforts to protect it.” However one looks at it, it seems that today's increasingly globalized world all but ensures that even those who are not in want of intellectual property rights may nevertheless find themselves in need of them.

Cynthia Khoo is a JD Candidate at the University of Victoria.

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A copyright infringement by multiple authors’ groups – including two Canadian ones – against Google and several universities for their book scanning and digital distribution has been��.

Federal Justice Hon. Harold Baer Jr. drew from the of , as well as the (ADA) in his decision. The defendants convincingly argued that Hathitrust appropriately disseminates materials for educational and social good purposes, in particular by greatly increasing reading material accessibility for people living with visual impairments.

The and the were the two Canadian plaintiff organizations, losing alongside the Authors Guild of America and others.

The backstory
The HathiTrust Digital Library is a database of reading material, much of which is provided the . The purpose of Google’s Library Project is, by Silicon Public writer Lisa Jackson, “to scan and publish all the books in the world.” HathiTrust already contains 10M books, 73 percent of which are copyrighted material.

This victory for Google follows on the heels of a recent copyright concession. In this , Google and the (AAP) announced a settlement in their marathon copyright dispute, which started in 2005. The suit was filed by the APP on behalf of members McGraw-Hill, Pearson Education, the Penguin Group, John Wiley & Sons, and Simon& Schuster. The APP gave Google the right to scan and sell e-books on the online store Google Play for an undisclosed amount of money.

The judgment
At issue was scanning for the purpose of indexing. The judge found that scanning is “transformative”, which is a fair use justification to sidestep normal copyright regulation. Historically for commentary, criticism or parody, but the definition is expanding in the digital day and age.

The judge, however, wrote that the “most important” transformative purpose of the scans was the “unprecedented ability of print-disabled individuals to have an equal opportunity to compete with their sighted peers” as argued by the defendants and the , which provided an opposition brief in the case. Judge Baer,

“The totality of the fair-use factors suggest that copyright law’s “goal of promoting the Progress of Science . . . would be better served by allowing the use than by preventing it.” Bill Graham, 448 F.3d at 608 (quotation marks omitted). The enhanced search capabilities that reveal no in-copyright material, the protection of Defendants’ fragile books, and, perhaps most importantly, the unprecedented ability of print-disabled individuals to have an equal opportunity to compete with their sighted peers in the ways imagined by the ADA protect the copies made by Defendants as fair use to the extent that Plaintiffs have established a prima facie case of infringement. In addition to the briefs submitted by the parties, the two memoranda filed by amici further confirm that the underlying rationale of copyright law is enhanced by the HDL.”

The orphans
Orphaned works remain in question. With a little over a quarter of works in HathiTrust having no copyright or known copyright, there is confusion about how best to proceed. Google proposed that it scan the orphaned works, place up to 20 percent of the text in search results, sell the works, and then set aside the collected sales revenue until the author comes forward. The New 91��ɫ Federal Court that proposal last year. U.S. District Judge Denny Chin felt that the plan as outlined in the Amended Settlement Agreement (ASA) not only����took too many liberties with the works, but also posed anti-trust concerns.

The ASA would give Google a de facto monopoly over unclaimed works. Only Google has engaged in the copying of books en masse without copyright permission…Google's ability to deny competitors the ability to search orphan books would further entrench Google's market power in the online search market.

Judge Baer did not rule on the orphan works question because the suit argued against the legality of the – a University of Michigan Library-led project to identify books whose copyright holders cannot be identified or contacted – which has not formally launched its efforts. The Orphan Works Project states on their website in an update from this past July that “There are no plans to provide access to these works.”

The new status quo
To recap the current parameters, there are some clear checks and balances to fair use in practice. One might say that neither side of this copyright debate is happy. And perhaps that’s how it should be. To wit:

• When people search the HathiTrust database to search a word in a copyrighted book, only the page numbers and number of mentions in the book are provided. The full text of the book is not available for fully abled individuals who do not have rights holder’s permissions.
• Full text will be made available for people who have rights holder’s permissions as well as for people with certified print disabilities. In the case of those with print disabilities, the work will be provided in an auditory version.

The response
The general public response has been largely positive, though there is a sample bias because so many internet commentators tend to the pro-digital-proliferation side of these types of debates. While many members of the copyright, legal or library community wrote supporting the decision; others, such as blogger Matthew Sag, have overstated the victory.

“The decision is a landmark win for the HathiTrust, the University defendants, people with print-disabilities, Google, the Digital Humanities and, I would argue, for humanity in general,” said Sag.

Authors are not, however, without their advocates. The concern that too much fair use hurts copyright holders who rely on copyright purchase for income was best summed up by Publisher’s Weekly reader George Payerle, who , “It’s clear that authors are expected to subsist on electrons.”

The big question
One major issue that remains under-addressed is data access. Google through HathiTrust is collecting large amounts of data about the who, what, where and when of book searching.

Word on the street is that Amazon has been less than generous about sharing its intel with publishers, so it’s possible that a part of the Google-AAP settlement includes terms of data sharing.

Certainly author groups should benefit from this same access to data, even as piecemeal compensation for their lack of legal copyright at the hands of fair use.

Denise Brunsdon is a JD/MBA candidate at Western University.

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Orphan Works and the Legal Problem They Introduced for Online Digital Libraries and Archives

“Orphan works” are works��such as��books, newspapers and magazine articles, films, and sounds that are protected by copyright, but whose authors are not known or cannot be located or contacted to obtain permission for their use.

Prior authorization��is necessary to make copyright-protected works available to the public in an online digital library or archive.�� When the relevant copyright owner cannot be identified or found, the work in question becomes “orphaned”.�� As a result, the required authorization for making the works available online cannot be obtained.

Consequently, libraries or other institutions that make copyrighted works available online to the public without prior authorization are vulnerable to legal action for copyright infringement.

The Context of the Directive’s Proposal

This directive was proposed against the backdrop of the����which advised member states to use the Internet to optimize the economic and cultural potential of Europe’s cultural heritage. ��As����by IP Osgoode,����in order to remedy the absence of a legal framework governing the lawful, cross-border, online access to orphan works contained in European libraries and archives.

Copyright Will be Protected by “Diligent” Searches ��

Under Article 2 of this new directive, a work would be deemed to be "orphan" if a "diligent" search is (1) made in good faith and (2) fails to identify or locate the copyright holder. Article 3 of the legislation lays down criteria for conducting such searches.

Works granted orphan status would then be made public, for non-profit purposes only, through digitization. A work deemed to be an "orphan" in any one Member State would then qualify as an "orphan" in all EU states. This applies to any audiovisual or printed material, including a photograph or an illustration embedded in a book, published or broadcast in any EU country.

Rightful Copyright Holders Can Claim Compensation for their Orphaned Works

Legislators agreed that the rightsholder should be entitled to put an end to the orphan status of a work at any time and claim appropriate compensation for the use made of it ().�� However, in order to protect public institutions, the provisions of this directive are designed to ensure the compensation payments remain small. Compensation would have to be calculated on a case by case basis, taking into��account the actual damage done to the author's interests and the fact that the use was non-commercial.

The text also includes an article () allowing public institutions to generate some revenue from the use of an orphan work (e.g. goods sold in a museum shop) provided that this revenue is used to pay for the search and the digitization process.

Overview of the Directive’s Relevant Articles

- sets out the scope and subject matter of the Directive as a variety of material contained in public libraries, educational establishments, museums and archives as well as in the collections of film or audio heritage institutions and archives of public service broadcasting organisations.
- contains the definition of an orphan work and incorporates the requirement of a diligent search.
- explains how the diligent search is to be carried out by those who are permitted to use orphan works. It states that a diligent search need only be carried out in the Member State of first publication of the work.
- establishes the principle of mutual recognition whereby a work deemed to be an orphan work after a diligent search carried out in accordance with Article 3 shall be considered an orphan in all Member States.
- concerns the possibility to put an end to the orphan work status.
- lists the uses that the named beneficiaries are permitted to undertake with respect to orphan works.
Articles 7 to 10 - specifies how the Directive deals with existing legal provisions pertaining to Orphan Works of member states.

Resulting Issues

Certain groups such as have as a positive starting point in the search for "a fair balance between the interests of the general public in accessing orphan works and the interests of authors in benefiting from the economic advantages derived from the exploitation of their works".

On the other hand, others have raised concerns that this new legislation indicates the start of a slide down a slippery slope towards laws that and ��whose works��can easily become anonymous on the internet.

Areas for Further Research

In Canada does allow the Copyright Board to issue licences for works whose owners cannot be found provided that a "reasonable effort" has been made to locate them-- so it would appear that the EU decision has little to offer our homegrown regime. ��However, Canadian law makers and legal academics may wish to take note of the Orphan works debate across the pond given that recent studies, such as the ��published in 2009, seem to suggest that there has been relatively little academic study of how the Canadian Copyright board has been handling orphan works. �� In their study, de Beer and Bouchard concede that while they have provided a closer examination of Canada's orphan works regime, more work needs to be done to evaluate its efficacy.

Takeaway for Canadians��

As the internet continues to grow as a forum for defining the identities of , , and even , the European debate about Orphan Works raises some interesting questions for Canadians. ��Should Canadian public institutions follow the European push to make our national heritage available online?����What steps are we taking to ensure those who would protect this public interest are themselves protected from legal sanction? ��What steps could we take to prevent works from becomming orphaned��unnecessarily?

Beatrice Sze is a JD Candidate at Osgoode Hall Law School.

The post EU Adopts Public-Use Policy for Orphan Works appeared first on IPOsgoode.

Since the introduction of Google Books in 2004 (previously known as Google Book Search and Google Print), Google has seen the development of its online index and search tool��marred by numerous lawsuits at home and abroad alleging copyright infringement. Publishers, authors, image creators and the like took issue with their unauthorized digitization of copyrighted works. In the United States, Google’s main contention throughout this legal saga has been that the snippets of pages that were digitized from��books were covered under fair use laws.

Although it seemed as if an agreement between U.S. publishers and Google was close to approval from both sides in 2009, were critical of the wide-reaching and all-too-favourable terms for Google. Even the Department of Justice at a fairness hearing in 2010, citing the fact that the terms may violate anti-trust laws in the U.S. and also required the court to exercise powers that it did not have to instigate copyright reform beyond the scope of the case at hand. Not surprisingly, New 91��ɫ Southern District Judge Denny Chin because it “goes too far” in giving Google the upper hand. Interestingly, Judge Chin noted that many of the objections cited could be pacified if the terms reflected an “opt-in” framework rather than the “opt-out” process proposed. and other content creators were especially critical of the opt-out model, wherein Google had sweeping rights to use any orphan works indefinitely until the rights-holder comes forward and objects to such unauthorized use.

In contrast, the settlement that has come to fruition in France reflects such an opt-in framework, wherein Google must first obtain the permissions of publishing houses and their respective authors prior to digitizing the French works. To date, Google has already signed digitization agreements with two major French publishers, and . Following this settlement, it is likely that Google will set its sights on convincing more French publishers and content creators to join. However, it is that publishing houses that ally with Google in this deal must agree that they will not sell their books through any other competing e-content distributor, which could represent a major��blow for Amazon, who recently introduced its French-language Kindle reader and accompanying online bookstore in France. What will��likely result in France is a race between Google, Amazon, Apple and��other e-book retailers��to sign any and all publishers as quickly as possible.

The agreement in France may nonetheless have little effect on the situation in the States. On May 31, Judge Chin rejecting Google’s motion to dismiss the claims brought forward while also granting the three plaintiffs involved class certification status. Google has since to appeal the decision with the Second Circuit, with summary judgments to be filed by July 27 and trial scheduled to begin on October 9. It seems likely that the case will proceed to trial for a determination of whether Google has infringed copyrighted works and owe statutory damages. The debate will no doubt be centered upon what “fair use” in this context can mean and whether Google’s use of the copyrighted works can fall under the fair use defense.

Publishers Weekly has that remarks made by the Authors Guild’s Executive Director seem to suggest another invitation for Google to resume negotiations for settlement. For the publishing industry as a whole, a key point of contention in these negotiations that must be resolved is a determination of how to ensure that authors of all published works, including those of an academic nature, can be taken into account through this arrangement. UC Berkeley Law’s suggests that scholars like herself are quite happy to provide their academic works in an open access forum, and their goals differ quite a bit from the more profit-oriented Authors Guild. As Samuelson contends, a class action lawsuit such as this may not be the most appropriate mechanism��with which to spur copyright reform to develop legal open access information schemes that cater to all. The results of this case, whether determined in or out of court, may indeed be a step in the right direction for the larger discussion of how best to balance protection of creators’ rights with public access to information and scholarship across all genres.

Fan Hannah Lan is a JD Candidate at Osgoode Hall Law School.

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