Baby steps for orphan works

So it looks like we might get an orphan works bill after all. Finally.

I’ve been interested in the orphan works problem since my first year of grad school, when I gave a presentation about it in my copyright class. This was right around the last time it looked like we might get an Orphan Works bill, and I remember checking the Copyright Office website every week to make sure I hadn’t missed anything good. Three years later, still nothing. It has been a real lesson for me in the excruciatingly slow pace of lawmaking.

First there was the recognition that orphan works were a problem that was only going to get worse. That happened when? Shortly after the Sonny Bono Let’s Extend Copyright Terms Again Because Almost Infinity Isn’t Long Enough Act in 1998? Earlier? Then Eric Eldred filed his complaint in 1999, and the Eldred v. Ashcroft verdict was finally handed down in 2002. Three years passed before the Copyright Office’s Notice of Inquiry in 2005. Then the Orphan Works Act of 2006 went nowhere. Now it’s 2008, and the Subcommittee on Courts, the Internet, and Intellectual Property held a hearing.

Here’s hoping something comes of it. Photographers and illustrators have been objecting strongly to all orphan works legislation, and I think they have some legitimate concerns about the ease with which their works can be separated from their names, but that doesn’t mean a reasonable orphan works bill wouldn’t have a tremendous public benefit overall. It’s long overdue.

[Update: I’ve written a follow up to this post, here]

11 thoughts on “Baby steps for orphan works

  1. “Photographers and illustrators … have some legitimate concerns about the ease with which their works can be separated from their names.”

    Hallelujah, you can say that again. It bears repeating, because politics makes for strange bedfellows.

    Libraries and the public will truly benefit from orphan works legislation *only* when the publishing industry (an industry determined to keep i.p. in the private domain forever) will falsely benefit. The publishers have made it clear: ‘give us increased opportunity to freely infringe the works of small creators and we’ll join with the libraries and the public on orphan works legislation.’ Note well, there’s no proposal yet included with the legislation that would provide that most genuine of things, an artists’ rights society that would collect a sliding scale of compulsory fees from commercial users of Orphan Works. That’s the true measure of how arrogant and emboldened the publishers are.

  2. Walter, you make a good point about the threat that commercial publishers may pose to small creators, and to the success of orphan works legislation. I hadn’t thought about it quite like that before, and it gives me some insight into (and sympathy for) the stance of the photographers and illustrators.

    Another place where commercial publishers may mess everything up is in the definition of a “reasonably diligent search.” Some proposals for reasonable diligence that I’ve seen would only be feasible for a commercial publisher with a lot of resources and time at its disposal, which would defeat the purpose of an orphan works bill, at least as far as librarians are concerned.

  3. Similar to getting a passport or a driver’s license, I hope for a kind of Chinese menu of what constitutes a diligent search for an orphan’s creator: non-commercial users perform any two of the following 14 items from a menu, commercial users perform at least eight of the same 14 items and make a deposit into an artists’ rights society. Failing that, commercial publishers, I suspect, will try to piggyback on the more-deservedly minimal requirement imposed on John Q. Public.

  4. This is certainly a subject of interest to me. I make my living as both a photographer and a writer. I constantly find incidents of both my photographs and my words being used without permission and without compensation. I do my best to protect my works, however the reality is that even without the implied and/or explicit permission that would be given by an orphan works act, I don’t have the financial means to take the thieves to court. Copyright laws which place the burden on the creator of the work are ridiculously ineffective.

    I am at a point now where I am not sharing my writings and photographs with the public as I used to, because I can’t protect my work effectively. Theft via the Internet is rampant, and watermarks on photographs are easy to remove digitally, which makes the creator difficult or impossible to identify.

    As a photographer, I have a right to be compensated when my work is used. If a publisher or other entity cannot locate the creator of the work, it should not be allowed to use the work, period. Several months ago, I discovered that a magazine had published my work without my knowledge. I sent them a notice requiring credit for the photographs and payment for their use; they sent me back a note informing me that they didn’t know who the photographer was, that I was free to take them to court, and that I should be flattered that they chose to use the work.

    Artists are already at a distinct disadvantage. I fear that orphan works legislation will make it even worse.

    – CJN

  5. Pingback: U.S. Americans: Orphan Works Legislation « Shopping Cart Disco

  6. As an artist I find this bill a frightening and horrific infringement of my rights to create and share my work without having to PAY to register it with numerous agencies This is a ludicrous scheme dreamed up by greedy corporations. If a piece of work is not from a stock provider, it is not available for commercial use. End of story, there is no such thing as orphaned artwork, there is only stock and not stock.

    http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00263

    What this bill means for artists like myself who ply our meager income through the web is abominable. Already vulnerable to being ripped, we are now going to have what little income we may be able to earn taken away from us, and with no legal protection at all. I will have to pay to register each and every piece I create with numerous agencies which STILL will not protect me or guarantee my work will not be declared “orphaned” and used commercially without any renumeration to me.

    Rest assured we artists and creators will be fighting this bill to keep it from passing as it so rightly did not in 2006.

  7. This Bill is anything but reasonable in how it approaches the issue of Orphaned works.

    I listened to the podcast by Brad Holland from the Illustrtor’s Partnership on this New Bill which will be out shortly.
    http://www.sellyourtvconceptnow.com/orphan.html

    It appears that this is no Accidental issue where there will be unintended consequences. These people have been told repeatedly how this bill will solve the orphaned works problem by throwing the baby out with the bath water. You as an artist will be stripped of all your rights, and you will only be able to gain them back by scanning and registering everything you have ever created that you want to protect into multiple private registeries that don’t even exist yet, at unknown cost! But they are fast tracking it for passage by JUNE!

    This is legislation that was dreamed up by a Marxist Law Professor here in DC, that with some tweaking fits the needs of Big Business and art agrigators like CORBIS and GETTY. It has been championed by Bush appointeees in the copyright office (the main guy just left to work for Microsoft (Bill Gates owns CORBIS)).

    Members of the House and Senate Legal committees are either in agreement with this or asleep at the switch, even with a Democratic Majority. Money is talking.

    You all need to be spreading the word. Send an email to all artist you know no matter how small the organization or individual.

    Send an email to this addrress and asked to be put on the update list:
    illustratorspartnership@cnymail.com

    Within the month you will need to be sending FAXes (that appears to be the most effective way to get congresses attention).

    Why can they do this when the Berne Convention (which we are a member of) seems to prohibit this. The technical work aound is that you are not required to register your work. But if you don’t, you have no practical method of finding and reclaiming your rights from infringers, or even stopping them from reusing your stuff since the penalties are so low for an “orphaned work” mistake. No Lawyer will ever take your case. You will have to likely spend thousand of dollars and hours to protect your work though private registries. Infringers will not even be required to check all the registries, so if you are not in the ones they look at, they can still use your stuff and claim ignorance as a valid excuse. An then go off and repost your material for all to use for free without fear of consequenses. This also exposes all foreign copyright owners to infringement as well because they are not required to register their works to receive protection in their own countries, but with the internet, there is no longer any barriers in reality.

    It is so back-ass wards a way to try and solve the true orphaned works problem which is a relatively small and inexpensive issue to solve (Canada has done it) , that it has become obvious that it is a trojan horse bill to accomplish a much more far reaching Goal. This could end up being the Factory-ization of the Artist life. You may will end up having to do work-for-hire to achieve practical protection from bigger companies.

    This is a serious life changing, once in a lifetime alteration in the way you can or can not make a living as an artist.

    Britt Griswold

  8. I’m an artist. I don’t like this proposal as currently structured. My comments here are in regards to selling, publishing, and commercial use of unattributed artworks with no creator’s agreement. If an unattributed artwork gets sold in any way, I am concerned.

    I feel much less concern about uses not for sale – educational uses, display in museum collections.

    First, there’s no such thing as an orphaned artwork. There are works that are difficult or impossible to trace. There is no problem of works that are difficult to attribute. There is a problem with non-creators using artwork without an ageeement.

    If the artwork is hard to trace, that’s an indication that the work should not be used. Just because an artwork exists doesn’t mean it must be used.

    I an artwork doesn’t get used, the world will not end. An individual or a company wishing to use an artwork of such and such will just have to find or buy or create an artwork without just taking it.

    It is not considered OK to drive off with a car, if you see the keys in it, but the licence plates are missing and ID numbers are obliterated. We all know, someone IS the owner with certain rights. We just don’t know who it is. Why then is it acceptable to use an artwork that is currently difficult to attribute?

  9. Chas, you oversimplify matters considerably. Because copyright lasts so long, there are many many cases where it is possible to attribute a work, but not to find the copyright holder. The artist may have signed away the copyright to a magazine that has since been sold, or gone out of business. The artist may be dead, and without any heirs. There may be heirs, but the artist’s will may not have mentioned copyrights.

    Here’s an example from real life: An author wanted to include some photographs of a newsworthy event in her book. The event was in the 1970’s, so she knew the photos were under copyright. She also knew who the photographer was and the newspaper in which the photographs were first published. First she tried to contact the newspaper, but learned that it went out of business in the 1990’s. She went searching for the photographer and learned that he is dead. She managed to find the photographer’s widow, and asked her for permission to use the photos. The widow said, “I’m sorry, but I’m not sure if I can grant you the permission you seek. I would be very happy to have the pictures appear in your book, but I don’t know if I control the copyright or not.” As a result, the publishers of the book refused to include the pictures because they did not want to risk litigation.

    With copyrights lasting more than a century, this happens all the time. Works are literally orphaned; their creators and original publishers die, leaving no one to ask for permission to reuse the work. It’s true, the world won’t end if those works disintegrate in a basement somewhere, never to be seen again. But I think the world would be a much richer place if we could resurrect those orphans, and expose them to a new generation of people who can appreciate and maybe learn from them.

  10. Molly
    First of all an (knowledgable) artist does not sign away all of his/her copyrights to a single magazine. Yes, there are many types of rights under the copyright law. Secondly, if someone like your author who wanted to use the 1970 photos could not secure the copyrights from the widow so what? Use some other photos that she can get rights to. Some times we can’t have someone else’s property just because we think we deserve it. That’s about the first lesson we all learn, usually in the first week of kindergarten. My images be they sketches, finished paintings or photos are my personnal property. Period. And if someone trys to steal them it is no different from someone stealing my car or breaking into my home and stealing my stuff. This act just tries to legitimize the theft.

  11. “But I think the world would be a much richer place if we could resurrect those orphans, and expose them to a new generation of people who can appreciate and maybe learn from them.”

    Maybe so, but that is no reason to weaken a fundamental property right. That is the basic premise you seem to mistake — that because YOU (or any user) find something belonging to someone else to be useful, you should have the primary right to use it in the name of some nebulous and unproveable “public good” and the author has only a subsidiary right to protect his or her work. (BTW: This is exactly the reasoning the Soviets used, and was until the late 1990s (and probably remains) the basis of Russian law on the subject.)

    Current copyright law works fine — sure it’s inconvenient for people who want to make money off the creativity of others, but that is the entire point. The orphaned works problem is not a “problem” at all; it is recogintion and an affirmation of the fundamental right of people to own property.

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