De Beer and Bouchard (2010)

Source Details

De Beer and Bouchard (2010)
Title:	Canada’s ‘Orphan Works’ Regime: Unlocatable Copyright Owners and the Copyright Board
Author(s):	De Beer, J, Bouchard, M.
Year:	2010
Citation:	De Beer, J., & Bouchard, M. (2010). Canada's' Orphan Works' Regime: Unlocatable Owners and the Copyright Board. Oxford University Commonwealth Law Journal, 10(2), 215.
Link(s):	Open Access
Key Related Studies:	Gervais (2010) Carriere (1993)
Discipline:	K23: Regulated Industries and Administrative Law O3: Technological Change • Research and Development • Intellectual Property Rights Z11: Economics of the Arts and Literature
Linked by:	Favale, Homberg, Kretschmer, Mendis and Secchi (2013)

About the Data
Data Description:	The article identifies, reviews and analyzes every application made to the Board pursuant to the Canadian legislation (s 77) and catalogues them into an organized database of files. A statistical analysis of the data was undertaken to produce the findings described in the article. It also includes a short legal analysis of the statutory scheme governing the issuance of licenses for orphan works. The data includes 441 applications that pertain to roughly 12,640 different works. This is because some applicants filed a single request for multiple works. 65% of applicants sought to only use one work, 24% applied for use between 2 and 10 works, and 7% applied for use between 11 and 100. A handful made applications for a license or licenses covering thousands of works.
Data Type:	Primary data
Secondary Data Sources:
Data Collection Methods:	Quantitative Collection Methods Survey Research (quantitative; e.g. sales/income reporting) Historical Methods
Data Analysis Methods:	Qualitative Analysis Methods Textual Content Analysis Legal Analysis
Industry(ies):	Creative, arts and entertainment Film and motion pictures Sound recording and music publishing Architectural Computer programming Cultural education Publishing of books, periodicals and other publishing
Country(ies):	Canada
Cross Country Study?:	No
Comparative Study?:	No
Literature review?:	No
Government or policy study?:	No
Time Period(s) of Collection:	Not stated
Funder(s):	Not stated

Abstract

This article analyses Canada’s approach to the problem of unlocateable copyright owners, more commonly called the problem of orphan works. Section 77 of the Copyright Act empowers the Copyright Board of Canada to issue a non-exclusive licence to an applicant whose reasonable efforts to locate a copyright owner have been unsuccessful. The article begins with a legal analysis of this statutory scheme, based on a review of every application made to the Board pursuant to s 77. These applications were catalogued into a database to facilitate detailed, empirical review and statistical analysis. This analysis lays the groundwork for comparisons among the Canadian system and approaches that already exist or are being considered in other jurisdictions, an evaluation of the underlying public policy issues, and a discussion of possible legislative or regulatory responses to the problem.

Main Results of the Study

Application success:

• About half of all applications eventually resulted in the grant of a license (a decision was issued in 52.2%). Only 5 applications were formally rejected. 22.2% of applications were abandoned because the copyright owner was found, usually with the help of the Board, and often with the help of collective societies.

Timing:

• It was difficult to generalize findings on application processing times because substantive methodological hurdles could not be factored into the analysis, nor did all files proceed in the same fashion. Even so, about half (49%) of the cases took less than 8 weeks to decide; one-fifth took between 2 and 4 months; 4 decisions (2%) took more than a year. 12% of decisions were issued within 2 weeks of the application being received and just over 25% took less than 1 month.
• There was almost no difference in the processing time required to handle applications to use artistic, literary or musical works. By contrast, applications to use architectural works were completed in about a quarter of the time.
• The Board processed applications for non-commercial uses of works more quickly than it processed applications for commercial uses. The median number of days was 47 for non-commercial applications and 63 for commercial.

Nature of Applicants, Works and Proposed Uses

• Businesses account for 37%; individuals for 31%; educators or educational institutions for 13%; government agencies for 11%; galleries and museums for 3%; community organizations for 4%; charitable groups made up the remaining 1%
• The majority of applications were for literary and artistic works (60%).

Value of Royalties

• Total royalties paid or payable is just under C$70,000.

Policy Implications as Stated By Author

• Some entities contemplating mass digitization are attracted by the level of certainty the Canadian approach can provide and have commented favorably on it.

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)

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)
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:	441
Level of aggregation:	applications
Period of material under study:	The cut-off date for analysis is the end of the 2008 calendar year, although some 2009 data has been included where available and appropriate.

Sample size:	12,640
Level of aggregation:	orphan works
Period of material under study:	The cut-off date for analysis is the end of the 2008 calendar year, although some 2009 data has been included where available and appropriate.