Forum Moderators: not2easy
Let's start with a brief definition of the Orphan Works problem:
“orphan works”—copyrighted works whose owners may be impossible to identify and locate.
What they are trying to accomplish is to allow usage of orphaned copyrighted material so that many potentially important materials may be included in publications and documentaries, after a good faith search fails to locate the author, to avoid massive copyright lawsuits including statutory penalties. Obviously the simplest method to avoid having your work orphaned in the first place is to file for a legal US copyright. However, many works have common copyrights and locating the author isn't always so simple.
Proposed Solutions
Part of the solution may be technology:
"The US Copyright Office is very impressed by the image recognition and tracking capabilities of PicScout,"
Here's more details about the hearings:
"The “Orphan Works” Problem and Proposed Legislation"
A user does not qualify for the benefits of orphan works legislation unless he first conducts a good faith, reasonably diligent (but unsuccessful) search for the copyright owner.
[copyright.gov...]
Proposed Legislation
Here's the proposed legislation H. R. 5889:
Troublesome Questions
I'm concerned that some of the language on the Orphan Works pages and proposed changes in the proposed of legislation bring up some conflicting issues and may make loopholes in the US Copyright laws that could cause problems and incur undue expense on the copyright owner to correct.
1. Failed Search Issues
conducts a good faith, reasonably diligent (but unsuccessful) search for the copyright owner
So what happens when your site is penalized by a search engine and the reasonably diligent (but unsuccessful) search is caused by the actions of the search engine themselves, do they have come culpability here in causing your works to appear orphan and subsequently become infringed upon?
2. Conflicts in Statutory Damages Language
From the “Orphan Works” Problem and Proposed Legislation:
Statutory damages would not apply to use of an orphan work.
Which makes no sense because statutory damages only apply, if I read the DMCA correctly, if in fact the copyright owner registered their work with the copyright office.
Therefore, if the work was never formally registered the statutory damages issue would be moot, but should be in full effect if it was formally registered.
3. Can registered copyrighted works be orphaned?
If the work is formally registered with the copyright office it can't be orphaned can it?
When a copyright owner cannot be identified or is unlocatable...
Assuming I'm registered as the legal copyright owner, whether or not you can locate me or whether I'm inclined to reply if you do locate me, assuming your inquiry gets past my spam filter or the defective delivery practices of my local postman, does not make my work abandoned!
So does this law make it possible that if a registered copyright owner doesn't respond and is "unlocatable", such as a 3 year vacation on some remote tropical island, that someone can then use my copyrighted material assuming it's been orphaned?
4. Search engines, Copyright crawlers and Your Site
Based on the language of this new legislation the simple fact of blocking crawling of your site or images could cause someone to claim your material an Orphan Work and infringe upon your work thinking it's abandoned because it may not show up in certified databases or search engines.
Could you become liable if you later enforced your copyright, which wasn't searchable because you blocked, either deliberately or inadvertently, the certified services being used to search for your allegedly Orphan Works?
I can see someone filing a successful counter-claim after you sue them for infringement because your web site security caused their reasonably diligent (but unsuccessful) search to fail in the first place.
Summary
Orphan Works obviously have issues that need to be resolved but I think the current proposals are short-sighted and leave open a can of worms that will take years for the courts to sort out.
Sometimes leaving good enough alone is the best fix.
P.S. Remember, this currently only proposed legislation so there are no legal implications on your copyrights, yet...
At a short lecture on this topic a couple of years ago, one speaker thought that it was "dangerous legislation eroding the rights of rights owners".
Similar legislation was being looked at in the UK, but the consensus of professional opinion was that it would not pass. No idea what the current state of that proposed legislation is.
As I understand it, anyone can declare an image to be an orphan work if they have not been able to determine the owners of that work. Apparently one need only fail to find the copyright owners within a 36 hour period before declaring it as an orphan!
On the up side, it will be possible for copyright owners to negotiate usage and permissions with those who have "mistakenly" taken their work as being orphaned.
All told, the legislation seems to be encouraging an image gold rush. All I have to do is keep records to show that I have done my utmost to find the copyright owner and, if I can't do it in a day and a half, the image is mine to use on the basis that it is an orphan...
it's creating a scenario where you will not be able to use and feasibly protect your images without investing in image tracking technology. Undoubtedly that technology will come from the "government preferred vendor".
I can see a scenario where copyright owners could find themselves unable to assert those rights on the basis that they haven't used the proper means to register and protect their images online. Likely that proper means could well be the technology provided by the approved vendor, which could well be PicScout.
Perhaps then, in the not too distant future, 3rd party copyright monitoring and protection services will start to spring up much in the same was as the UK has independent "copyright registration services". Mind you, it has to be pointed out that there is no official copyright registration agency in the UK, so in many respects these 3rd party services are of limited value.
Having said that, there is another way to assert ownership, and that's through the iptc meta data included in digital images - the equivalent of the photographer's rubber stamp on the back of a pic. Certainly it used to be that by merely using "save for web" in Photoshop, the iptc data would be erased.
One would have thought that if this problem could be overcome (perhaps it already has been with later versions of Adobe CS?), then the foundations for some form of digital protection would already be in place.
Syzygy
his has been on the cards for a some time now
The reason I brought it up is there are 2 new pieces of legislation both dated 4/24/08 so it's coming to a boil.
Likely that proper means could well be the technology provided by the approved vendor, which could well be PicScout.
That's what my next post will be about because Picscout, those lovable guys that help Getty locate images, testified for Congress on this very topic.
BTW, our pals Google testified in Congress as well and that legislation has terms in it about a "certified database", you think Google image search will qualify?
I'm just hoping for a VETO, that's the best outcome I can imagine.
Picscout, those lovable guys that help Getty locate images, testified for Congress on this very topic.
That's why I made that point...
The theft of images is wholesale. We all understand that. Technology is being developed to help prevent it.
In the short term the technology seeks to serve one master - the corporate image library.
It provides a means for them to detect image theft over the web. On the face of it though, what's wrong with that?
Eventually the software will filter down into the mainstream and we'll all be able to use it to track down all those images that have been stolen from us. Again, on the face of it, surely it's a good thing...
Whilst reparation for copyright infringement may not be legislated for, surely it's not needed ("Sorry Guv, I didn't know it was your pic!". Since when did ignorance become a defence in law?). If you can prove it's your image, the offending party will have to agree to your terms for the continued use of it - or remove it. Right?
Well, of course, we all know it's never going to be that simple.
The proposed legislation is similar to that (as far as my simple understanding of it is concerned) which applies to works with revived copyright. If you cannot trace the owner of a revived work then you may use that work without any fear.
The benefit of the doubt is on the side of the user - not the owner. Something image libraries, in their constant drive to expand their collections, are all too aware of.
The "orphan" legislation appears to be an extension of that principle.
Syzygy
The benefit of the doubt is on the side of the user - not the owner.
Exactly - that's why I thought it was important to raise this ugly issue as this legislation isn't copyright, it's copywrong.
This is the context of the legislation: it's not aimed at protecting the person on the street or on the web - it's a corporate thing!
Through the digital age the holdings of photo libraries is steadily being diminished. This legislation ensures them an ever expanding supply of images from an increasing variety of sources.
Syzygy
it's not aimed at protecting the person on the street or on the web
The only "person on the street" example they used was someone wanting copies or retouching of an image made from a studio that is no longer in existence. If the original studio no longer exists people should be able to get their personal images reproduced or retouched, I have no arguments with this.
That's a scenario that I think should be dealt with separately from this Orphan Works legislation because the usage and intent are completely different.
Copyrights and patents were meant to feed the public domain, not detract from it. The way things work now, most copies of a work are going to be long gone before they enter PD.
In the old days, copyrights were always registered, and they were for a set number of years. In the USA, I believe it was originally 14 years. Then if you still valued it at the end of that term, you could renew it. At this point, it costs nothing to protect your work for what is basically an unlimited time.
I would really like to see a return to something like that. Unregistered is only good for 14 years. Registered gets you to opportunity to renew a few times, but you have to pay to claim it as something of value.
Another important point in registering copyrights, is that the LOC has a copy of the work for when it does enter PD.
I also like what Tasmania does. If a book is out of print, the library has the right to make personal copies of the entire work for their patrons. If it comes back in print, they stop supplying them. I've used this method to get electronic copies of some rare, out-of-print books, that you can't even find in online used book stores.
At the very least, the new law should have some sort of limitation on claiming a work as "orphan" within a certain number of years from its assumed publication date.
this will basically the copyright as we know it. The crucial point is the question:
What is a search for the copyright owner in good faith, reasonably diligent (but unsuccessful)?
With photos, it will be fairly easy to create orphaned works: take a high-res image, upload it to Flickr, download one of the smaller renderings that the service generates, done. Yep, the service renames the image and conveniently removes all EXIF information from the smaller images for you. Now, if there is no watermark, how can anyone find the rightful owner? Virtually impossible today, if you ask me.
OK, if the image is registered with one of those copyright infrigement hunting services, and IF the potential user of an image goes to one of those services, checking whether the image is in their databases, then maybe maybe it can be found. But these are a lot of IFs...
And by the way, this bill may also affect musicians, who do not write chart breakers, and basically any artist who creates digitizable works that are not very popular (i.e. just seeing it or listening to it does not identify the copyright holder unmistakenly).
I'm very clear that is a dangerous bill and very bad for creators of every kind.
But I'm not so clear on to the motivation for this? WHO WILL BENEFIT FROM THIS BILL, and why do these guys promote the bill?
From looking at the various discussions, I see that those promoting a "free and unrestricted Internet" are the same who are also in favor of this new bill. In other words: THEY WANT CONTENT TO BE FREE. What is available shall be available for all (and most importantly, for their services and databases that will attract those who look for free images). Think scrapers who want to do their dirty work legally.
Virtually impossible today, if you ask me.
Actually Picscout does this, they scan the web and their image software can even find images in comps, scaled, you name it, which is why Getty's lawyers are ramped up sending demand letters to everyone.
I agree that the motivation behind this bill is highly suspect.
Think scrapers who want to do their dirty work legally.
It won't be that easy because they still have to file papers declaring they did a reasonable search for the owner and scrapers will never do such a thing IMO.
