Oh man. I see the rumors and misinformation are being spread here too.
I encourage everyone to actually read the bill before continuing to spread the false information that seems to have started with a poorly researched article at an animation site. If you'd rather not read it all, here's the bits you should know:
The bill is basically a provision for specific groups and organizations to use works that are unable to be copyright-verified. We're talking libraries, museums, and other non-profit groups here. Not commercial businesses. Meaning not your typical stock image buyer. And use of orphan works images requires a lengthy process of approval that few people will really bother with, especially for microstock images. The time is takes to go through the orphan works process is not worth the time, especially for an image that can be legally licensed for a few bucks.
Should someone want to go through with an orphan works claim and usage, a few things need to be done:
A "diligent search" must be performed to try and locate a copyright holder. This search must be done within specific databases. The US Copyright Office will be required to certify official databases which must be used to do a diligent search for a copyright holder before an image is used under an Orphan Works claim.
An image user is required to file a notice of use before the use is made, and the Copyright Office is required to maintain an archive of those notices.
If the user fails to file the notice of use, he loses the right to an orphan works defense should an infringement claim be brought against them.
The "safe harbor" for an orphan works usage is only available to nonprofit educational institutions, libraries, archives and public broadcasters where:
-The use is made without purpose of commercial advantage (meaning no commercially-used stock photos would qualify), and
-The use is made primarily for educational, religious or charitable purposes, and the infringer promptly ceases the use after the copyright owner comes forward.
- In any event, the copyright owner is entitled to any proceeds that the infringer received that are directly attributable to the infringement. So if someone does grab a stock image and try to use it under an orphan works claim, they would stand almost no chance of winning a court case defending that usage. If you found someone to be using one of your images under a false orphan works claim, you might be entitled to a nice chunk of money.
Copyright is still implied upon image creation. One of the biggest misconceptions about this orphan works bill is that in order to keep our images from being used as orphan works, we'd have to register each and every one of them with the copyright office. It just is not true. I've read the bill myself, and there is no wording in it that implies otherwise. The law that says that copyright is granted upon completion of an image in "fixed form" remains on the books, as it is now. The orphan works bill is a separate piece of legislation, it will have no impact on current copyright laws regarding how copyright is assigned, and we will not need to do anything to maintain the current copyright protection that we currently have.
In reality, the orphan works bill is a good thing. It will allow many worthy groups to finally have usage rights to old imagery that has long been locked away and not able to be used for fear of possible copyright infringement. This bill will open the door for release of some images that the world might not have otherwise seen, while not in any way damaging the copyright protections we already have.
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