Orphaned Works Bill

Gracey · #1 (**permalink**) 04-26-2008, 10:35 AM

I'm really surprised to have not seen any discussions here on the orphaned works bill in the US. It's pretty frightening stuff, even for those who already have images registered at RO - from the way the articles and interviews have reported on this it sounds as though photographers and artists will have to register images all over again...one fee for one image.

Has anyone else been following this? I'm not a US citizen, but there is no doubt in my mind that if passed this bill will cause giant headaches for everyone, not just American citizens. The possibilities that this bill can open up in terms of copyright infringement or theft are rather large when you start thinking about it.

Karimala · #2 (**permalink**) 04-27-2008, 10:07 AM

For some reason, I thought the bill had died in Congress last year, so I stopped following it. It must have just been on vacation.

IPA - New Orphan Works Act Due Out This Week

IPA - ORPHAN WORKS RESOURCE PAGE FOR ARTISTS

Gracey · #3 (**permalink**) 04-29-2008, 11:01 AM

It had been dropped for a while I think, but apparently they've been trying to push it through without a lot of fanfare or exposure, which is bad news for all of us. One of the artists on RB posted a link to a free copyright site - not sure how much good it will do, but I've started using it until I can get all of my images onto disc and registered BEFORE the bill passes, but the way I've read it, even if the images are already registered we may have to register them with every registry that pops up.

I know the bill essentially applies to US copyright, but it does contravene the Berne Convention, so in effect it means whether you are American or not, you could be stung.

My Free Copyright

I suppose it's a small measure of semi-protection, but possibly better than none for people who can't afford to register individual images - it's time consuming to register them though, and when you do you get an email for every one.

sharpshot · #4 (**permalink**) 04-29-2008, 02:04 PM

Isn't this bill just for cases when it is impossible to find the copyright holder? People can find our images on the microstock sites if they do a diligent search, so they shouldn't be able to use this. We can still take action if they are abusing our copyright.

Gracey · #5 (**permalink**) 04-29-2008, 02:23 PM

That's the premise they are marketing it under, but there are so many things contained in it that make it open to huge misuse.

For instance...if someone appropriates one of your images (from wherever) and removes your exif and/or iptc data and copyright, then posts it somewhere else (on a blog, on a photosharing site, whatever) and someone else takes it from that blog, and posts it elsewhere (an on and on it goes without any information on where it came from)...then, perhaps the last person to use it gets caught using it...they don't know where it came from because there's no info - and even at that, lets just say they did search a couple of registries for it, but didn't find it (because you didn't happen to register it at those particular registries) - there's no backlash for that person and from what it looks like (and everything I've read and listened to) no cause for you sue - even if they happened to have been selling that image. Sure, you can prove it's yours, but can you sue them? Unlikely, and even if you could, they also want to limit the damages to some minimal amount.

It also will require you have your images registered at multiple registries, which will be private companies, not the government registry.

It really takes more than a casual read through the propropsed bill, and there are some scary interviews you can listen to...listening to those is really what tuned me in to what actually could happen, even if the bill isn't mean that way.

Audio Interview

Lots of links in the forum below for anyone whose really interested.

Team Zazzle on the Orphanded Works Act? - Feedback and Suggestions - Zazzle Forum

sharpshot · #6 (**permalink**) 04-29-2008, 05:45 PM

According to this, they will build a big database that will have to be searched. Perhaps the stock sites will be included?

Orphan Works Bill Would Establish Database Of Photo Copyrights

Gracey · #7 (**permalink**) 04-29-2008, 06:54 PM

Maybe, but from what I understood (and that could be wrong since there have been numerous opinions out there) there would have to be some regulatory rules for a registry, and that there would be a cost involved for registering images. It wouldn't be too bad if they allowed stock sites and PODs to register their entire library for a one-time fee.

The way I see it...the best option is for someone to shoot the bill down

(or to make significant changes to it's current state).

Edit: after reading that article, I see that someone is trying to make changes at least. I suppose that's a good side, but that article sort of reads like government propaganda...a little anyway.

helix7 · #8 (**permalink**) 05-04-2008, 05:42 PM

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.

oboy · #9 (**permalink**) 05-06-2008, 03:00 PM

more info Orphan Works | Stock Artists Alliance

oboy · #10 (**permalink**) 06-26-2008, 12:17 PM

Here is an article from the Rangefinder Magazine
http://www.rangefindermag.com/magazine/Jun08/114.pdf