The proposed US Orphan Works Act would dramatically shift the balance away from copyright holders, in favour of those who would like to use creative argues EPUK moderator Tony Sleep
Imagine this: anyone in the USA can use your copyright work without asking, and should you somehow find out they've robbed you, they can escape all legal liability by claiming they didn't know who they were stealing from, and then only paying you whatever they consider reasonable.
On Thursday the 'Shaun Bentley Orphan Works Act of 2008' was placed before the US Senate and House of Congress. Ostensibly intended to permit the legal use of orphaned works – works whose copyright status and ownership cannot be traced – the bill will have these astounding consequences for photographers around the world.
If this Bill passes into law as it is currently written, it will potentially strip copyright control from every photograph that has not been registered with the privatised commmercial registries that the Bill proposes to create. It allows infringers the defence that any work that is unregistered with these agencies is an orphan and may be used.
Should the copyright holder subsequently find out about the usage, they must send a written notice to the user of the image who is then obliged to pay a 'reasonable' amount. In practical terms all other legal redress for infringement is removed.
Two-tier nature of US copyright law
Although the Bill provides for other means of establishing ownership that would disallow the 'orphan' defence, such as metadata, databases and context, the real problem lies in the two-tier nature of US copyright law.
At present, international copyright law is defined by the Berne convention which makes copyright purely a passive right : if you create something, you own copyright by right, without having to do anything, and it is up to would-be users of your copyright material to trace ownership and negotiate usage.
The Bentley Bill stands this principle on its head by requiring the creator to take costly and time consuming steps to obtain registration, and by limiting liability for infringement for any unregistered work that can plausibly be described as an orphan. Whilst the USA is a signatory to Berne and cannot diverge from its principles, supporters of the Bill claim that copyright remains passive, it's just that if you want the protection of legal remedies you may optionally register work.
http://www.epuk.org/Opinion/848/uncle-sams-thieves-charter
Orphan Works bill introduced in US
By John Watson // April 25th, 2008
There has been a lot of discussion and a lot of fear among photographers regarding potential orphan works legislation.
A major problem with current copyright law is that it does not provide a way to use a creative work that has been abandoned (no entity can be found to claim ownership). The premise behind an "orphan works" addition to copyright law is that it would provide a means for anyone to make use of copyrighted material that no longer has an owner.
It works by limiting damages that can be claimed if the work truly falls under orphan works protection.
http://photodoto.com/orphan-works-bill/
Oppose the Orphan Works Act of 2008
By now many of you are already informed about the proposed Orphan Works Act being introduced to the U.S. house and senate. For those unaware, this legislation, if enacted, can effectively undermine and dismantle your existing copyright protection.
Currently, copyright is granted the moment a work is created. This new Orphan Works legislation proposes a change in U.S. copyright that would (indirectly) require artists, illustrators, photographers, and any creative individual to actively maintain and defend their copyright by registering each and every work with privatized registrars. Failure to do so would leave everything you've ever created as an artist up for grabs by anyone who wanted to copy, reproduce, create derivative works of, or flat out steal your work since the act defines an "orphan work" as any work where the author is unidentifiable or unlocatable, and applies to both published and unpublished works, U.S. and foreign, regardless of age.
This is completely contradictory with international copyright standards and is ethically, logistically, and financially bonkers.
http://drawn.ca/2008/05/13/oppose-the-orphan-works-act-of-2008/
Orphan Works - Beyond the U.S.
Yesterday, I attended a lecture presented by ALAI and hosted at the Access Copyright office on orphan works. The speaker was Willem Grosheide, a professor from the Netherlands.
This was a very interesting discussion, especially in light of all the activity in the U.S. surrounding their Orphan Works legislation. Here are my notes:
http://blog.juliannayau.com/2008/05/14/orphan-works/
Photo Advocates Divided Over Orphan Works
May 08, 2008
By Daryl Lang
Updated 4:05 p.m. ET
As the orphan works copyright legislation advances through Congress, it has exposed a split among photo associations. With their ranks divided, professional photographers have lost whatever lobbying power they might have had as a unified force.
On one side is the American Society of Media Photographers (ASMP), the Professional Photographers of America (PPA), and stock photography companies. After years of lobbying against the orphan works amendment, these groups are resigned to the idea that it will probably pass. Their strategy is to work with legislators to get concessions for artists added to the law.
Taking a different tack are the Advertising Photographers of America (APA), the National Press Photographers Association (NPPA), and others who have lined up behind the Illustrators Partnership. They say any orphan works law will diminish their rights, and feel their voices were left out of the negotiating process. They have stirred up a vocal following with an online advocacy campaign.
Other groups have differing stances, including the Stock Artists Alliance (SAA), which urges a more tightly drafted bill, and Editorial Photographers (EP) and the American Society of Picture Professionals (ASPP), which have not announced any position.
http://www.pdn-pix.com/pdn/newswire/article_display.jsp?vnu_content_id=1003801084
How Will the Orphan Works Bill Affect Ownership of Your Art and Written Work?
by Mary Emma Allen on May 9th, 2008
QuiltingAndPatchwork.com
If a proposed law, H.R. 5889, The Orphan Works Bill of 2008 passes the U.S. House of Representatives or S. 2913, The Shawn Bentley Orphan Works Act of 2008, passes the Senate, will your images, photos, artistic work and authored works be in danger of becoming public property? Apparently, the infringers just have to indicate they can't find or couldn't contact the owner and will have free use of much written and artistic work.
In a radical departure from existing copyright law and business practice, the U.S. Copyright Office has proposed that Congress grant such infringers freedom to ignore the rights of the author and use the work for any purpose, including commercial usage. In the case of visual art, the word "author" means "artist." (From Overview at Illustrators Partnership of America)
The House Bill already has passed the House Judiciary Committee.
For more information on how this affects you, the artist, photographer, painter, designer…small and home business owner, visit the Illustrators Partnership of America web site.
Another source of explanation of "Orphan Works" and the consequences to authors and artists if one of these bills becomes law is at Public Knowledge.
"Orphan Works" are copyrighted works - books, music, records, films, etc - whose owner cannot be located. (From Public Knowledge)
http://www.quiltingandpatchwork.com/2008/05/09/how-will-the-orphan-works-bill-affect-ownership-of-your-art-and-written-work/
The very basics on this legislation:
Currently under US copyright- the only legal way to use someone's work (whether you have officially filed for copyright with the US copyright office or not) is to find the copyright owner and negotiate for the use. If you can't find the copyright owner you can NOT legally use the work. If the proposed current legislation passes as it is now written, that will change. These proposed pieces of legislation will allow for someone (a person or a business) who has done a "search" (which is not clearly spelled out in the legislation at this point as to how long and what the search will need to entail) and if they can't find the copyright owner, they will be legally allowed to use or infringe the copyright (i.e. use your work). This will hold for artwork, music, family photos, films, essays, poems, etc.. You don't lose your copyright, but your work will be able to be legally infringed under these pieces of legislation if your work is deemed to be orphaned.
What has prompted this legislation you may ask? Libraries and other educational institutions have works in their collections that they would like to use the copyright for educational purposes and presently they can not find the copyright owners in question. Individuals want to be able to retouch old family photographs and they too can't find the copyright owner of the photographs (although I personally know folks who have had their family photos retouched without any problems). Documentary filmmakers are also in need to have access to images and work that they can not find the copyright owners of. These are clearly very important issues that need to be dealt with- unfortunately both pieces of legislation allows for anyone to infringe who has done a search and the proposed legislation makes no distinction from educational use v.s. commercial use. (i.e. an advertising company could use your work under this proposed legislation if they searched and could not find you).
There are other aspects of this legislation that are very troubling that are contained in both bills: 1) the pieces of legislation calls for on-line databases or what would be also called registries to be certified by the Copyright office for visual artists to register their work with. No where in the legislation does it say they are to be free of charge to artists and although the law does not mandate you to register your work with these databases/registries- it is clear that these databases/registries will be a key tool for those to use searching for the copyright owners and a way for them to justify they did a search, 2) the amount of damages that can be retrieved by the copyright owner if they "surface" and find their work was deemed and used as an orphan work when in fact it was not orphaned are very problematic and unacceptable 3) this law will essentially force musicians, writers, visual artists, and others who want to protect their creative work to officially copyright their work to protect it-this will be too costly for most individuals and small businesses. 4) and the very real problem that works will be classified as orphaned works when in fact they are not orphaned, etc..
http://www.artistsfoundation.org/orphan.html
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