Orphan Works Bill of 2008

[Gdad]

Ran across this on another site- kind of startling if true.

Warning- the second video has some foul language in it.

http://profile.myspace.com/index.cfm?fuseaction=user.viewprofile&friendid=386479191

 

[cathy0124]

WOW! That's Horrible. I sent letters to my senators - I hope more people do so as well.

 

[Code]

I did too... scary.

 

[MarkBarbieri]

For those that haven't watched the videos (and I have to admit, I haven't), the Orphan Works Bill allows people to incorporate copyright works into their works without permission of the copyright holder if they have perform a reasonably diligent search and have been unable to locate the copyright holder. The problem that is being addressed by the bill is the creation of work that includes potentially copyrighted materials within it. Some examples include the creation of educational materials, documentaries, and independent films. In many cases, the creators refrain from the use of available materials because the copyright owners cannot be found and the rights cannot be secured. The risk under current law for such use is too great, so they forgo the use.

The primary concern that I've seen expressed is that it will essentially be a license for theft. I think that view is overstated as copyright infringers are not well deterred by the current laws and are not likely to be more encouraged under the new law.

From a practical standpoint, as a photographer that publicly posts electronic image files, you should be certain to tag your photos with metadata establishing your ownership and some form of contact information. With that in the file, no one could use the electronic file without your permission under the new law.

Personally, I can think of many copyright issues that bother me more. I'm annoyed by the rampant piracy of copyrighted works. I'm bothered by what I see as license abuse from copyright holders. I'm really annoyed that copyrights were extended on existing works with no perceivable benefit to the public (who should have been able to start taking advantage of early movies entering the public domain).

 

[Scott_Sheppard]

Go listen to this ...

http://www.insidedigitalphoto.com/radio-programs/idp-radio-us-orphan-works-act-of-2008

Enjoy

 

[Geoff_M]

In many cases, the creators refrain from the use of available materials because the copyright owners cannot be found and the rights cannot be secured. The risk under current law for such use is too great, so they forgo the use.

The primary concern that I've seen expressed is that it will essentially be a license for theft. I think that view is overstated as copyright infringers are not well deterred by the current laws and are not likely to be more encouraged under the new law.

Mark, those two parts of your post are somewhat contradictory. If the infringement is rampant, then it would appear that not too many creators are concerned about the ramifications of using works that are likely orphaned.

The "devil" for most photographers is in the details.... What's a "reasonable" effort? They are also concerned because defending your works will cost more because you'll have to pay a non-existent industry to register your images much like the domain name industry. You also lose the right to say WHO can use your photos.

One of biggest flaws of the bill is that it doesn't limit its impact to historical truly "orphaned" works. Any work created has the ability to become a "instant orphan"!

A photo business blogger does a pretty good job of highlighting the problem:

Worse yet, the legislation does not limit usage to libraries and museums, and does not limit usage to non-commercial use. That’s right, the orphan works legislation, if passed, will allow anyone to use your images for almost any purpose, including advertising, editorial, product packaging, television, and just about anything else, without your advance permission. The only requirement is that they fail to find you before they start using your image. The only limitation on use, apparently the result of lobbying by organizations representing retail photographers (wedding, portrait, sports, school), is a prohibition on the use of images on “useful articles” (keychains, coffee mugs, etc.) which are increasingly a cornerstone of the retail business. Interestingly there is no prohibition on the use of orphan works on packaging for useful articles.

Don’t be fooled by the fact that the legislation indicates a date of 2013 for the first use of orphan works. A careful reading reveals that the legislation will allow use of your images immediately upon the certification of the first two registries to be certified by the copyright office. Such registries could be launched and certified immediately upon passage of the bill this year, allowing anyone to use your images even before you have an opportunity to register them. Under these bills, you have no right to stop anyone from using your images once that usage begins, and you lose the right to sue for copyright infringement, even if you have registered your copyright with the US copyright office. Some classes of users are not required to pay you any fee if and when you discover the unauthorized usage. Others are required to pay you a reasonable fee, but only if you discover the usage, and even then, the user will have the upper hand in determining what the user believes is “reasonable.” As you might imagine, most users will point to the millions of microstock images available for $1.50 each, allowing unlimited usage.

...

Orphan works legislation allows anyone in the US to use any image by any photographer or stock agency (regardless of nationality) for any purpose (with the exception of “useful articles", aka "tchotchkes ") without permission of the rights holder, simply by searching for and failing to locate the rights holder.

Instead of calling these users, let's call them what they are - infringers. They remain infringing upon the rights of the image creator, but they are like the bulletproof monk, except they have the more timely title judgement-proof infringer, or JPI for short.

Once the JPI commences use, there is no means by which to stop that JPI from continuing to use the image, even in competition with the photographer or rights holder. It's like giving Fat Albert an all access pass to the buffet, with everything from book covers to advertising, billboards and electronic use, even if the photograph was made yesterday.

White supremacists could find a copy of a one of my photographs on the web, from which my name and contact has been stripped by a third party, and do their diligent search, maybe even post a message in the local paper or on Craigslist in the "missed connections" column, and then when no one responds, use it on the cover of a "white power" poster, adorned with swastikas, and I'd have less recourse than a virgin after-the-fact, to reclaim my innocence and purity. Link

The leading PJ organization, the National Press Photographer's Assoc. (NPPA) has come out against the legislation: Link . They agree there's a need to change the laws to accommodate truely "orphaned" works, but this bill is a loose cannon to them.

 

[MarkBarbieri]

Mark, those two parts of your post are somewhat contradictory. If the infringement is rampant, then it would appear that not too many creators are concerned about the ramifications of using works that are likely orphaned.

They aren't. There are honest, law abiding people in the world that try to do the right thing. Those people are inhibited from using materials in their works by current copyright law. This is the complaint coming from people doing documentaries.

There are many people that are not concerned about intellectual property and freely infringe on copyrights when it suits their needs. They are not deterred by the law as it exists today. I don't think that this law will significantly increase misappropriation of intellectual property.

The "devil" for most photographers is in the details.... What's a "reasonable" effort? They are also concerned because defending your works will cost more because you'll have to pay a non-existent industry to register your images much like the domain name industry. You also lose the right to say WHO can use your photos.

I recognize the complaint about loss of control, but it only applies when the ownership of the image is not reasonably ascertainable. I still don't see it as a particularly compelling issue.

One of biggest flaws of the bill is that it doesn't limit its impact to historical truly "orphaned" works. Any work created has the ability to become a "instant orphan"!

There is no way to distinguish between the two. If I don't know the ownership of the work, I'm likely not to know whether it is an instant orphan or not. It might be possible to distinguish a photos age by the subject matter, but in many cases it is not.

A photo business blogger does a pretty good job of highlighting the problem:

The leading PJ organization, the National Press Photographer's Assoc. (NPPA) has come out against the legislation: Link . They agree there's a need to change the laws to accommodate truely "orphaned" works, but this bill is a loose cannon to them.

I think that the original problem that the bill is trying to solve is relatively minor, but I also think that the problems with the solution, while generally valid, are vastly overstated. The implication in most of the commentary that I've read is that we'll be moving from a world with reasonably good copyright protection to one with almost no protection at all. The fact is that for major uses today (ad campaigns and such), copyright protections are well protected today and will be with this law. For minor uses, there is very little practical protection at all today anyway.

 

[Geoff_M]

I recognize the complaint about loss of control, but it only applies when the ownership of the image is not reasonably ascertainable. I still don't see it as a particularly compelling issue.

When you realize how easy it will be for the ownership of an image to become something less than "reasonably ascertainable", it should become more compelling in my opinion. Consider this all too common scenario... You post an image on-line. You've taken the smart steps of placing a small copyright notice in the lower left-hand corner of the image as well as making sure your name and copyright info is in the EXIF data. However, someone sees it, likes it, and snags a copy for themselves to use on their site. They don't want it known that they've ripped off your photo, so they slightly re-crop it to remove your copyright notice text in the corner and delete the EXIF data.

Along comes a 3rd party and they like the image and want to use it commercially. They ask the 2nd person if it's theirs and they say "No, I found it on a web-site last year... I think." The 3rd party searches for it by subject name on Google, but doesn't find anything. They also check with one of these independent copyright clearing houses that I'm supposed to pay money to (above and beyond the cost of actual copyright registration) to try and protect my works, but for whatever reason they don't find it.

Bingo!!! It's an "orphaned work." The 3rd party if free to use it basically with carte blanche (except for things like mugs and keychains, go figure!). I've seen this happen with works of my fathers that I've put on-line. They can now be found included in vidoes on YouTube. I e-mailed the video's creator and it was a "I got it from a guy, who found it on the web somewhere" story.

If this bill becomes law, about the only sure protection is to put a big watermark across anything you have on-line.

The implication in most of the commentary that I've read is that we'll be moving from a world with reasonably good copyright protection to one with almost no protection at all. The fact is that for major uses today (ad campaigns and such), copyright protections are well protected today and will be with this law.

I think the problem isn't that there will be "no" protection, it's that is tilts the playing field way towards the infringer. Their risk, under the new law, would shrink towards zero. As long as you make a "reasonable" (with no real definition in the law as to what that means*, btw) effort to find who owns an image before using it, one of two things will happen:
1) No one will notice it, and you get to use the work for free.
2) The real owner comes forward after the use has started, you only have to pay them a "reasonable" amount (which is what you probably would have paid to the owner to begin with, or perhaps less, as determined by a 3rd party apparently), and you're legally protected to be able to continue to use the work even if the owner objects.

If you're a content user, what's not to love about those rules!!!


* = The Senate version states that the infringer's "diligent" search need only meet some minimum standard that the U.S. Copyright Office will officially define at a later date.

 

[cmwade77]

I think this is a great thing personally, I have often found items that I can not find or contact the original owner. Now the easy way to prove this is put everything on a CD and send it by certified mail to yourselves. If a legal battle ensues, you can bring the sealed envelope in and use it as evidence.

After listening some more, I take that back, there must be a better way....grr..