IP Osgoode recently hosted the Orphan Works Hackathon at Osgoode Hall Law School. Typically, a hackathon brings together professionals from a common field, such as computer programming, and assigns them a complex problem to solve. The organizers of the Orphan Works Hackathon used the same premise but invited a broad spectrum of stakeholders of orphan works. The hackathon produced not only a simple solution to a complex problem but also a simplified process for tackling complicated issues.
An orphan work 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 d.School, the design thinking 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 UK Intellectual Property Office and the US 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 website 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.
