Hansen, Hinze, and Urban (2013)

From Copyright EVIDENCE

Advertising Architectural Publishing of books, periodicals and other publishing Programming and broadcasting Computer programming Computer consultancy Creative, arts and entertainment Cultural education

Film and motion pictures Sound recording and music publishing Photographic activities PR and communication Software publishing (including video games) Specialised design Television programmes Translation and interpretation

1. Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare 2. Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)? 3. Harmony of interest assumption between authors and publishers (creators and producers/investors) 4. Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption) 5. Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)

A. Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right) B. Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction) C. Mass digitisation/orphan works (non-use; extended collective licensing) D. Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability) E. Fair remuneration (levies; copyright contracts) F. Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Source Details

Hansen, Hinze, and Urban (2013)
Title: Orphan Works and the Search for Rightsholders: Who Participates in a 'Diligent Search' under Present and Proposed Regimes?
Author(s): Hansen, DR, Hinze, G, Urban, JM
Year: 2013
Citation: Hansen, D. R., Hinze, G., & Urban, J. M. (2013). Orphan Works and the Search for Rightsholders: Who Participates in a'Diligent Search'under Present and Proposed Regimes?. Berkeley Digital Library Copyright Project, White Paper, (4)
Link(s): Definitive , Open Access
Key Related Studies:
Discipline:
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About the Data
Data Description: The paper identifies four general categories of responses to the “who participates?” question in recent proposals.
Data Type: Primary and Secondary data
Secondary Data Sources:
Data Collection Methods:
Data Analysis Methods:
Industry(ies):
Country(ies):
Cross Country Study?: Yes
Comparative Study?: Yes
Literature review?: Yes
Government or policy study?: No
Time Period(s) of Collection:
  • Non-stated
Funder(s):
  • Alfred P. Sloan Foundation

Abstract

Over the past several years, policy makers and private actors have developed an evolving set of approaches for addressing the orphan works problem — a problem that arises when “the owner of a copyrighted work cannot be identified and located by someone who wishes to make use of the work in a manner that requires permission of the copyright owner,” preventing follow-on uses of works. These approaches usually attempt to address the orphan works problem by employing some threshold mechanism to differentiate true orphan works, to which the proposed solutions would apply, from non-orphaned copyrighted works. Satisfying a “reasonably diligent search” is one well-known formulation by which users can designate works as orphaned and therefore subject to a proposed solution, though — as this paper points out — alternative approaches certainly exist. Regardless of the specific formulation, the search for rightsholders (or conversely, the confirmation that no rightsholder can be located) is an integral component of almost every orphan works proposal. This paper examines in detail the core schemes for identifying rightsholders among the leading orphan works regimes and proposals. Although these schemes differ across many variables, three factors predominate: (1) who is expected to participate in the search process, (2) the nature and extent of the required search generally; and (3) specifically what types of resources, tools, registries or other information-sharing mechanisms are required or allowed. This paper compares existing proposals’ approaches with respect to the first factor: who participates in a search? A subsequent paper will focus on the second and third factors.

Main Results of the Study

  • Some systems, such as that proposed by the U.S. Copyright Office’s 2006 Report on Orphan Works and the ensuing legislative proposals, are relatively simple in that searches are conducted by independent users acting on their own.
  • Others, such as the system currently in place in Canada and elsewhere, involve more government oversight and an approval process for the use of orphan works.
  • Still others remain relatively unclear with respect to what parties would be involved in the search or what level of oversight, if any, would be required to ensure that adequate searches are undertaken.


Policy Implications as Stated By Author

  • Extended Collective Licensing regimes (ECLs) have recently been proposed as a potential orphan works solution. But as this paper points out, there are several unknowns as to how searches by Collective Management Organisations (CMOs) would be conducted, how orphan status would be accounted for in the pricing of licenses, and what sort of oversight would be required to quell conflict of interest concerns.
  • More research is needed to understand the relative costs and benefits of allocating search responsibility to different parties, such as the end user or a CMO. This research would enable policymakers to develop an understanding of the most appropriate and efficient allocation of the costs of searching for owners.



Coverage of Study

Coverage of Fundamental Issues
Issue Included within Study
Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare
Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)?
Harmony of interest assumption between authors and publishers (creators and producers/investors)
Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption)
Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)
Green-tick.png
Coverage of Evidence Based Policies
Issue Included within Study
Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right)
Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction)
Mass digitisation/orphan works (non-use; extended collective licensing)
Green-tick.png
Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability)
Fair remuneration (levies; copyright contracts)
Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Datasets

Sample size: 4
Level of aggregation: Model for orphan works
Period of material under study: Non-stated