Claire Wortsman is an IPilogue Senior Editor and a 3L JD Candidate at Osgoode Hall Law School.

Photo by Buda Photography

On November 9, IP Osgoode, Reichman University and Microsoft hosted the first in-person Bracing for Impact Conference since 2019. The conference focussed on “The Future of AI for Society.” While AI is full of exciting possibilities, real-world application and integration are relatively nascent. Implementing AI technology in society requires complex interdisciplinary engagement between engineers, social scientists, application area experts, policymakers, users, and impacted communities. At the conference, an esteemed lineup of speakers across disciplines discussed the forms that interdisciplinary collaboration could take and how AI can help shape a more just, equitable, healthy, and sustainable future.

The speakers at IP Osgoode’s told many stories and pondered many questions. Most of these – how to balance the benefits of data collection with the drawbacks of ubiquitous surveillance, how data-informed legal practice can increase access to justice, how to leverage data in healthcare in an ethical way – are questions that come up often and are growing in popularity as Artificial Intelligence’s capabilities continue to expand. Yet the Keynote Address and Keynote Commentary at the Conference told a that has never been told. And while many speakers focussed on the future, in the Keynote Address and Commentary, Professor Lior Zemer and the Honourable Justice Marshall Rothstein turned to the past.

Professor Lior Zemer, Dean at the Harry Radzyner Law School at Reichman University, began his presentation with Artwork of the Compiègne Concentration Camp by Abraham Joseph Berline created in 1941. Dean Zemer explained that the image was of the camp’s watchtower and prison booth. Berline constructed it using egg shells from the scraps given to Jewish inmates as food and a wooden plate he found at the camp. In 1942, Berline was transferred to Auschwitz and murdered. In 2021, the drawing auctioned in Jerusalem for $8,000.

Berline was not the only individual who managed to create art under unimaginable circumstances. There was the Women Orchestra of Auschwitz, the Theater scene in the Vilna Ghetto, and many more. As a prisoner in Auschwitz, Dina Gottliebova Babbitt was forced to author portraits of prisoners. These paintings that saved her life are currently held in the Auschwitz-Birkenau Memorial and Museum in Poland, despite her pleas for their return: “They are definitely my own paintings; they belong to me, my soul is in them, and without these paintings, I wouldn’t be alive.”

Dean Zemer took the audience through many examples that raise emotionally and legally complex questions: Who is the owner – who can perform, play, reproduce, display, and communicate to the public – these works, or versions of them? Who is entitled to the right to complete uncompleted work such as the compositions of Czech Jewish composer Pavel Haas who died in Auschwitz in 1944? “Art is a form of testimony,” Dean Zemer explained, “when art is created under extreme circumstances, its unlimited message to the outer world is unparalleled to any other way of expressing the experiences in these circumstances.” This art is of paramount importance to institutions and museums striving to educate the public about the atrocities in the camps and ghettos. Yet using these works with no authorization from legitimate owners is both morally and legally questionable.

In September, Dean Zemer was visiting Warsaw, Poland and noticed a street exhibition in the Old City that included drawings made by children in concentration camps. Some visitors mocked the drawings, and some of the drawings were vandalized. After explaining the jarring experience, Dean Zemer posited that “Copyrighted expressions within the ghettos and concentration camps have no parallel example in human history. As such, these works deserve sui generis protection. The authenticity of these works makes them a closed category. Copyright law protects and should continue to protect communicative and dialogical spaces. Copyright laws should not stand between exposure to authenticity, but at the same time should not avoid dealing with illegal ownership claims.”

Dean Zemer explored the copyright principles of Fair Use, Orphan Works, and Perpetual Rights. Fair Use, he explained, can help strike a balance: there is a public interest in having the fullest information available, but these works’ unique nature requires us to present them as is with no modifications or transformative messages. Most artwork created in ghettos and concentration camps is today, by default, Orphaned Work. Yet this art shares a common Jewish heritage, and the unique circumstance that led to the orphanhood of these works renders the Orphan Works doctrine insufficient. Similarly insufficient is the form of non-perpetual protection favoured by the Common Law – moral rights in Holocaust works should be granted perpetual protection, which requires special legislation.

Dean Zemer presented evocative , , and of the Holocaust. Dean Zemer, a third-generation descendent of Auschwitz survivors, closed his presentation with an image that evoked a different set of emotions. The image captured his 11-year-old son playing the oboe in the Pavel Haas in the Israeli Conservatory: Dean Zemer’s “own little victory.”  

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Sally Yoon is an IPilogue Writer, IP Innovation Clinic Fellow, and a 3L JD Candidate at Osgoode Hall Law School.

On June 23^rd, 2022, the Parliament of Canada passed legislation to extend the term of copyright protection in literary, dramatic, musical and artistic works from life of author plus 50 years to 70 years. The extension may seem like an additional incentive for creativity, but many have consistently voiced that it won’t be as beneficial as anticipated.

The change results from Canada’s commitment in the (CUSMA) to extend the general term of copyright protection. The clarifies the extension’s benefits, stating that “[a] longer general term of protection will increase opportunities for Canadian rights holders to monetize copyright-protected content, thereby encouraging investment in the creation, acquisition and commercialization of such works.” The exact date of the change, and therefore the specific list of affected works, remains unknown. 

Meanwhile, IP experts, organizations, and institutions continue to express concerns about the negative consequences of copyright term extension.  expressed how the 20-year extension could “hamper creativity” by inhibiting them “to build upon and rework creative content”. The extension, they argue, would hinder creativity and stray from a balanced copyright system – one where “the rights and interests granted to both creators and the general public are necessary to stimulate vibrant creativity and foster the sharing of knowledge.” have also pointed to studies conducted in other countries that show the negative effects of copyright term extension. According to an interesting study on “,” a book entering the public domain generates 26.5 additional editions on average after it enters the public domain.  Moreover, the availability of audiobooks for public domain bestsellers significantly increased from 1913-1922 compared with copyrighted bestsellers from 1923-1932.

Critics are also concerned about the extension’s impact on “orphan works” or “out-of-commerce works”, which was addressed in last year’s on how to implement an extended general term of copyright protection in Canada. "Orphan works" are works that are still protected by copyright but whose owners are unknown or unlocated. “Out-of-commerce works” are works still under copyright protection but no longer available to the public through normal commerce channels. The main concern is that the 20-year extension will result in more orphaned or out-of-commerce works, posing more barriers to the further spread of ideas.

To address these issues, the recommended implementing a system where copyright holders who want the extra year can register for it, while the other works will enter public domain. The Committee argues that this would contribute to a balanced system by protecting works with ongoing value while allowing works that don’t to enter the public domain. However, along with concerns about higher administrative costs, some are also concerned that the registration requirement could create a “” – one for owners who are knowledgeable and can afford the registration fees, and another for those owners who are unaware of the option to extend protection. Moreover, due to the varying times the works would enter the public domain, the two-tiered system could also hinder creativity. 

The concerns are loud and clear. Despite being proposed to encourage creation, the extension seems likely to obstruct the very thing it was intended to promote.

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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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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 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 . 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) and . 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 , a fellow at Stanford Law School’s Centre on the Legal Profession and a lecturer at .

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 explaining how someone might use Orphan Hunter.

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

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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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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.

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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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