If you want to use a copyrighted work in Canada but cannot locate the owner, you must apply to the Copyright Board of Canada for an “unlocatable copyright owner” licence. Using an “orphan work” without this official licence-even if you tried your hardest to find the creator-can still result in strict financial penalties for copyright infringement.
Imagine discovering an incredible vintage photograph in the archives of a library in Winnipeg, Manitoba, or finding a brilliant, out-of-print poem you want to feature in your new documentary. You want to do the right thing and pay the creator, but they have completely vanished. 🔍 In the legal world, a creative piece whose copyright owner cannot be found is known as an “orphan work.”
Many Canadians mistakenly believe that if they search online for a few days and find nothing, the work automatically enters the public domain. This is incredibly dangerous. Under Canadian federal law, copyright generally lasts for 70 years after the creator’s death, regardless of whether they are famous or unlocatable. To legally protect your project from future lawsuits, you must navigate a highly specific federal process. Working with an experienced Canadian law firm from our directory ensures your search efforts meet the government’s rigorous legal standards.
Step-by-Step Process for Orphan Works in Canada
You cannot simply take the artwork and ask for forgiveness later. The Copyright Board of Canada operates a specific regime designed to issue legal licenses when the original owner is genuinely missing. Most creators follow these strict steps to secure permission.
Step 1: Proving the Work is Still Under Copyright
Before applying to the government, you must confirm that the work has not already fallen into the public domain. If the author died more than 70 years ago, the copyright has expired, and you can use the work freely without anyone’s permission. 📚 A lawyer can help you conduct historical research to determine the creation date and the author’s lifespan.
Step 2: Conducting a “Reasonable Search”
The Copyright Board will reject your application if you have not made a sincere effort to find the owner. You must document a “reasonable search.” This includes checking copyright registries (like the Canadian Intellectual Property Office), contacting publishers, searching obituaries, and reaching out to relevant collective societies (such as Access Copyright or SOCAN). Keep a meticulous log of every email and phone call.
Step 3: Filing the Application with the Copyright Board
If your thorough search yields nothing, you must submit a formal application to the Copyright Board of Canada in Ottawa. You will provide copies of the orphan work, detailed logs of your search efforts, and an explanation of exactly how you intend to use the material (e.g., in a film, a book, or an exhibit).
Step 4: Awaiting the Board’s Evaluation
The Board will independently review your file to verify that your search was genuinely exhaustive. If they agree that the owner is unlocatable, they will issue a non-exclusive licence. This document legally permits you to use the work strictly in the manner you described in your application.
Step 5: Paying the Mandatory Royalties
The licence is rarely free. The Copyright Board will set a royalty fee that they believe is fair for the use of the work. You must pay this money directly to a designated Canadian collective society (a copyright management organization), which will hold the funds in trust just in case the original owner ever surfaces. 💰
How Much Does it Cost in Canada?
Securing an unlocatable owner licence involves several direct and indirect costs. The figures below reflect average estimates as of May 2026, calculated in Canadian dollars (CAD).
| Expense Type | Estimated Cost (CAD) | Description |
|---|---|---|
| Copyright Board Application Fee | $0 | Currently, the Board does not charge a filing fee to submit the application itself. |
| IP Lawyer / Search Agent | $1,500 – $4,000 | Legal fees to conduct the mandated “reasonable search” and draft the application. |
| Mandatory Royalties | Variable | Determined by the Board based on usage. Usually ranges from $50 to several hundred dollars. |
| Infringement Damages | Up to $20,000 | The maximum penalty per work if you skip this process and just use the orphan work illegally. |
While the royalties are typically modest, the legal legwork required to prove you conducted a proper search is where most applicants spend their budget.
How Long Does the Process Take?
Obtaining an orphan works licence requires significant patience. Conducting the initial historical search and documenting your dead ends usually takes an applicant 4 to 8 weeks.
Once you finally submit your complete application to the Copyright Board of Canada, the bureaucratic processing time is generally between 45 to 90 days. If the Board feels your search was inadequate and requests more information, the timeline can easily stretch into several months. You legally cannot publish your project until the licence is officially in your hands.
Frequently Asked Questions (FAQ)
What happens if the copyright owner eventually shows up?
If the true owner emerges within five years after the expiration of the licence, they have the right to claim the royalties you paid to the collective society. Because you held a valid Copyright Board licence, they cannot sue you for copyright infringement.
Does this apply to works from outside of Canada?
The Copyright Board of Canada can only grant licences for the use of orphan works inside Canada. If you plan to distribute your documentary or book internationally, this Canadian licence will not protect you from lawsuits in other countries.
Can I apply for a licence after I have already used the work?
No. The Board cannot issue retroactive licences. If you have already published the work without permission, you have already committed copyright infringement. You must apply and receive the licence before the use occurs.
Can I just use a small 10% piece of the orphan work safely?
No. Using any “substantial part” of a copyrighted work requires permission. There is no magical percentage under Canadian law that makes unauthorized use legal. If the piece is recognizable, you must apply for a licence.
What if the author is known, but I just can’t find their address?
This is exactly what the unlocatable owner regime is for. Even if you know the photographer’s full name but cannot find their contact information, estate, or heirs after a reasonable search, you can still apply for the licence.
Leave a Reply