The US at at it again with an Orphan Works Bill, or two to be precise. You can read a thorough examination of what this means for photographers in Why the Orphan Works Act is Uncle Sam’s thieves’ charter by Tony Sleep on EPUK.
Basically this seeks to upturn the Berne Convention on copyright and make your photographs an open house for theives – unless you have paid for them to be entered in private registers certified by the US Copyright Office.
In particular any work on the Internet will be at danger, and if this is passed into law I think the only protection we will have will be to overprint every image we put on the web with a large visible copyright notice. I’ve always been against this approach as I think it severely damages the value of putting images on-line.
It is hard to see the rest of the world accepting this US usurpation of intellectual property and we may expect to see some retaliatory action if either of these bills becomes an act – as it seems likely to do with the end of term coming up for President Bush.
It’s also worth reading ‘A Wolf in Sheeps Clothing‘ on Photo Business News which makes clearer some of the problems. What is surprising is the support for the proposal from the ASMP, in a feature that contains the astonishing statement “In a nutshell, we see little financial harm to creators from the non-profit and non-fiction uses of orphaned images.” In other words they think we don’t – or shouldn’t – make money from “Uses in works of non-fiction, such as books, articles or documentary films or videos” and “Uses by non-profit educational institutions, libraries, museums or archives“, while they want to alter the bill to make sure that commercial users can’t use it as a “free pass to profit from infringements.”
For many of us this seems to imply we should be happy to give away a large chunk of our income. The APA (Advertising Photographers of America) seems rather more clued up when it comments “If left unchanged, this legislation has the potential to destroy the businesses and livelihoods of thousands of photographers, other visual artists, as well as the collateral small businesses that serve the industry, and are dependent on, creators.” It is also worth looking at the Stock Artists Alliance site – they too are also calling for major changes in the bill.
If you want to take action – whether you are a US citizen or not – the Illustrators Partnership page has some useful suggestions.
Of course there is a real problem with s0-called ‘Orphan Works’ although its perhaps not surprising that the Canadian approach – which instead talks about ‘Unlocatable Copyright Owners’ offers a solution far more favourable to creators. Simply, if you wish to use a copyright work and can satisfy the Canadian Copyright board you have made reasonable efforts to locate the copyright owner, they will grant you a licence and pay a fee to a collective copyright society. These fees can be claimed by the copyright owner up to 5 years after the end of the licence, but otherwise would be distributed to members in a similar way to the fees we can now receive for the photocopying of our work.
This system allows users to make use of such works for reasonable fees – but not free of charge, and also passes on fees to creators. There is a balance about it totally missing from the US proposals. I hope that other countries will take up similar proposals – and also take suitable retaliatory action against the US if they pass an Orphan Works act that effectively gets rid of copyright protection for works not registered in the US
Good to see you covering this issue Peter.
If anything it is more serious for photographers outside the USA, whose work will be available for gratuitous orphan claims, yet the claims (and reasonableness of payments) will be unchallengeabe, due to the cost and difficulty of litigating in the USA.
A further consideration is that UK government will be probably legislating for orphan works and registration within the next year, in recognition of last year’s Gowers report recommendations, and will no doubt be cribbing ideas from the US.
You will also find more information at http://www.copyrightaction.com including a critique of the ASMP & SAA positions.
Thanks, I meant to mention the Copyright Action web site, but forgot.
I mentioned the Canadian system very much as a better model for the UK government to follow. It may not be perfect, but it is a much better protection for creators’ rights.