About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

95 J.L. Pol'y & Globalization 93 (2020)
Orphan Works Situation under Canadian Copyright Act

handle is hein.journals/jawpglob95 and id is 94 raw text is: Journal of Law, Policy and Globalization www11isteorg ISSN 2224-3240 (Paper) ISSN 2224-3259 (Online) Vol.95, 2020 IISTE Orphan Works Situation Under Canadian Copyright Act Bzhar Abdullah Ahmed Lecturer and Head of Higher Education Unit at Faculty of Law, Political Science and Management, Soran University Abstract This article examines the orphan works solution under the Canadian Copyright Act. This article introduces the type of solution adopted by the Canadian Copyright Act. The author undertake a qualitative approach to a thorough investigation that discloses that Canada has adopted centrally granted licensing model which enables a public body to issue licenses for users of orphan works. The author also revealed that under the Canadian system a prospective user is required to carry out a reasonably diligent search prior to using orphan works. It is understood that the type of solution adopted by the Canadian law may not function well at the moment, due to technological advancements that allow public libraries and other public institutions to digitise the whole collections that they own. However, compulsory licenses model could be considered a barrier before such institutions to have all their collections digitised, therefore, it is preferred for the Canadian law to adopt extended collective licenses model in addition to the compulsory licensing model. Keywords: orphan works, centrally granted licenses, license, section 77. DOI: 10.7176/JLPG/95-12 Publication date:March 31st 2020 Introduction Authors are provided with the exclusive rights under which nobody is permitted to utilise their work without prior permission. Nevertheless, utilisers might encounter a situations, known as orphan works, in which the copyright holder is unidentified or untraceable, that makes it difficult or even impossible for the utiliser to obtain the license. Orphan works are copyrighted works whose owners are difficult or impossible to identify and\or locate after a diligent search has been carried out.' Canada has provided a solution to the problem of orphan works since 1988 under the Canadian Copyright Act of 1985. Although the original Canadian Copyright Act of 1985 did not initially contain a solution to the problem of orphan works, it did so by amending the Act in 1988.2 The Canadian Copyright Act calls works orphans if they have 'owners who cannot be located'. Under section 77 of the Canadian Copyright Act, in the case of the failure of the prospective user to locate the copyright holder of a work, the Copyright Board of Canada may grant a licence to the user in order to make use of the work.3 However, the Board grants authorisation only if it is satisfied that the prospective user has made reasonable efforts to trace the copyright owner but was unable to do so, despite that effort. If the Board is satisfied that the prospective user has made the required effort, it can grant a non- exclusive licence permitting the user to make use of the work under the conditions set by the Board, such as those relating to licence fees, expiration time and type of use.' The Copyright Board of Canada is given wide discretion, which has led to a number of legal and practical issues. In respect of paying royalties, the Board can require the user to pay either at the time of locating the copyright holder or instantly to a collecting society that represents the copyright owners.5 It has been demonstrated that among the terms and conditions set by the Copyright Board of Canada, those regarding price and payment have been the most difficult issues.6 Wide discretion is also vested in the Canadian Copyright Board regarding issuing a licence if there is uncertainty about whether the required work is still under copyright protection or not, and the Board also has discretion with regard to denying an application, provided the issuance of the licence is denied reasonably. The Canadian Copyright Board has also to act reasonably in respect to setting the terms and conditions of a licence. 'Bzhar Abdullah Ahmed and Kameran Hussein Al-Salihi, 'Proliferation of the problem of orphan works across the world' (2019) 22 The Journal of World Intellectual Property 419. 2 Marcella Favale and others, 'Copyright, and the Regulation of Orphan Works: A Comparative Review of Seven Jurisdictions and a Rights Clearance Simulation' (UK Intellectual Property Office, July 2013) 32. ' Canadian Copyright Act 1985 last amended on 19 June 2017, s. 77. 4British Screen Advisory Council, 'Copyright and Orphan Works: A Paper Prepared for the Gowers Review' (August 2006) 10. 5 Giuseppe Golangelo and Irene Lincesso, 'Law Versus Technology: Looking for a Solution to the Orphan Works' Problem' (2012) 20 International Journal of Law and Information Technology 178, 200. 6Bingbin Lu, 'The Orphan Works Copyright Issue: Suggestions for International Response' (2013) 60 Journal, Copyright Society of the USA 255, 265. Jeremy De Beer and Mario Bouchard, 'Canada's Orphan Works Regime: Unlocatable Copyright Owners and the Copyright Board' (2010) 10 (2) Oxford University Commonwealth Law Journal 215, 217. 93

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most