As the first collaboration of its kind, in February 2016, IP Osgoode and The Copyright and International Trade Policy Branch of the Department of Canadian Heritage, came together to organize the “Orphan Works Licensing Portal Hackathon”, a multi-day hackathon to develop options for a new online system to process licensing of Canadian orphan works through collaborative engagement of experts and stakeholders.

The Hackathon, a unique workshop-type event, using a mixture of user-centered design and agile start-up methodology, allowed the full range of participants (students, engineers, policy analysts, collective society members, industry experts, librarians, archivists) from Canada and abroad to work in teams to identify opportunities, design new prototypes to improve the Canadian Orphan Works system. Significantly, the participants pitched the resulting prototypes and tested these for evaluation by subject-matter experts.

The hackathon produced and vetted many new ideas within the three days, and some of the more successful concepts were built into initial demos with the potential to be flushed out in full by ongoing projects. Thanks to IP Osgoode’s collaboration with BEST (Bergeron Entrepreneurs in Science & Technology) at the Lassonde School of Engineering, which ultimately awarded as prizes, time and expertise in their labs to further develop the prototypes, these projects have the serious ability of being adopted and making a difference in the orphan works system. In addition to the concepts and demos, the hackathon also produced some key insights and directions for future work in improving intellectual property policy generally, and specifically that around orphan works and the copyright regime. Rather than the usual “conferencing of ideas”, the hands-on approach of the hackathon served as a quick and agile way to surface many concerns, new ideas, and key points for intervention and opportunities. Ultimately, the idea of employing the concept of a hackathon to work constructively towards solutions, came from IP Osgoode’s Founder and Director, Professor D’Agostino’s sabbatical time in Stanford, and animated by her SSHRC grant work entitled “Triggering Innovation: Transnational Partnership for the Mobilization of IP Policy and Practices” (SSHRC Partnership Development Grant, Grant No. 890-2011-0097). With already a successful hackathon organized the previous academic year in partnership with the Canadian Intellectual Property Office and the Lassonde School of Engineering, on making the patent system more user-friendly, the concept of hackathons are no doubt a useful practical and policy tool to resolve many of Canada’s IP challenges.

This report presents the process that the hackathon used, the work product that was created during the design process, and the concepts and insights that emerged out of the hackathon.

Featured here is the Introduction section of the report entitled "IP Osgoode Orphan Works Hackathon: Final Report of the Concepts, Process and Insights" by Professor Giuseppina D'Agostino and Margaret Hagan, the Design Hosts for the Orphan Works Licensing Portal Hackathon, which took place on February 3-5, 2016 at Osgoode Hall Law School.  The .

Giuseppina D’Agostino is the Founder & Director of IP Osgoode, the IP Intensive Program, and the Innovation Clinic, the Editor-in-Chief for the IPilogue and the Intellectual Property Journal, and an Associate Professor at Osgoode Hall Law School.

Margaret Hagan is a fellow at Stanford Law’s Center on the Legal Profession and a lecturer at .

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In February, I got invited to take part in a hackathon. I took a second look at the invitation, and 'hackathon' jumped out! But we wouldn’t be hacking our way into the government or big business. Instead, we would try to solve a problem with a digital solution.

IP Osgoode at the Law School of 91��ɫ in Toronto has tried to look at intellectual property issues with a fresh pair of eyes. They use the hackathon process as a way of exploring potential solutions.  For this hackathon, they wanted to look at orphan works. In Canada, these are published copyright works where the right holder isn't found. At the moment, to license a work the applicant must complete a diligent search for the right holder and apply to the Copyright Board of Canada with a paper application.

Why hack?

This way of designing solutions was a great way to have intensive work on a project over a 2 day period. Small groups identified a problem connected with orphan works. They then came up with possible solutions, developed a prototype and pitched it to a panel of judges. It was important to keep the customer or user at the centre of the solution. It was innovative and fun but would it work for them? But to also bear in mind how sustainable the solution was, who would fund it and who would maintain it.

I was invited with colleagues from our IT team to help explain how the UK had developed its own digital solution for . I was also asked to be a judge for the hackathon ideas.

Our orphan works scheme is slightly wider in scope than the one in Canada. It's also online so the IPO can receive and deal with applications immediately. So far, we have  for photographs, paintings, books, songs, classical music and other works in a variety of ways. If the owner of the copyright work comes forward, we can pass on the licence fee to them.

There are always improvements we can make to our system and some of the solutions at the hackathon could apply in the UK.

Some of the ideas were really innovative. The winning concept used ideas from the digital worlds of gaming, incentivisation and crowdsourcing.

Hackathons provide an engaging and fast-paced way of working. The IPO has already held successful hackathons to look at digital issues and will definitely have more in the future. Let us know if you have ideas for a hackathon on an IP issue in the UK.

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An is a work whose rightsholder is difficult or impossible to locate. This problem affects two categories of people: users and rightsholders. Users, who intend to use a work whose rightsholder is unlocatable, must conduct an exhaustive search for the rightsholder, apply to a copyright board for a licence to use the work, or use the work without permission. And, rightsholders, whose copyright protected work is used without authorization, may be forced to sue or forgo recognition of their intellectual property. As the issues surrounding the use of orphan works tangentially affects many stakeholders, a diverse group of people with different backgrounds were invited to participate in the hackathon. This group included: lawyers, policy makers, judges, law students, software engineers, film directors, archivists, librarians, and private license issuers.

Under the leadership of IP Osgoode's founder and director, Prof. Giuseppina D'Agostino, and Margaret Hagan, a fellow from Stanford University's , the process was used to corral the diverse set of participants. Design thinking aimed to focus everyone's energy on achieving the hackathon’s end goal—the creation of a new model of licensing orphan works—despite the group's seemingly divergent backgrounds, concerns, and approaches to problem-solving. In the design thinking process an out-of-the-box idea can spark a radical change, potentially leading to a greater quantity of unique solutions. It was therefore a rule that all ideas proposed were to be considered.

The participants were split into teams and tasked with creating a prototype. My team was comprised of an archivist, two computer programmers-turned law students, the director of a private licence issuing company, and two upper-year law students. Each individual brought a unique perspective and skill-set to the table. Because coders, archivists, private licensors and law students metaphorically speak different languages, we had to reframe the orphan works problem into plain language that we could all understand. To translate the problem into a universal language, our team employed visual aids, analogies, and definitions. The “anything goes” rule of design thinking boosted our initial meeting, as everyone felt free to ask any clarifying questions.

To facilitate prototyping, we were shown existing solutions in other jurisdictions. Representatives from the Copyright Board of Canada, the Intellectual Property Office and the Copyright Office presented the orphan works regime in their respective jurisdictions. After hearing their presentations, my teammates and I realized that our solution needed to incentivize rightsholders to register their creations and also incentivize users to obtain a license for the use of copyright protected works. In the end, our prototype was a simple registration/licence application process where rightsholders and users could follow a series of simple steps. It incorporated some aspects from the UK Intellectual Property Office and was not confined to just Canada because it included the copyright registries of countries around the world.

Orphan works present a complicated problem: users can either forgo the use of a work or use it and potentially suffer consequences while rightsholders struggle to have their rights respected. Simplifying and reframing complex problems can lead to simple solutions with broad applicability. The IP Osgoode Orphan Works hackathon may prove to be an ideal model for future hackathons and large-scale problem solving.

Quin Gilbert-Walters is an IPilogue Editor, a JD Candiate at Osgoode Hall Law School, and a Winkler Institute Research Assistant.

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Over the course of three days in early February 2016, IP Osgoode played host to the , 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 and the Copyright and International Trade Policy Branch of the Department of , the event brought together stakeholders from various fields and institutions, including: libraries, archives, and museums, the , the United Kingdom’s , and students from Osgoode Hall Law School and the . Our “Design Hosts” were IP Osgoode Founder & Director, Professor and Margaret Hagan of .

The event sought to take a 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 . 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 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.

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