According to the Copyright office orphan works are where the owner of a copyrighted work can't be traced or identified.
Both America and the UK are looking at revising copyright laws that involve these so called orphan works, that will allow them to be freely copied and merchandised providing a diligent good faith search has been made.
However, it is very easy to remove the extif information from digital images lifted from the internet. the extif data is the digital tag that can be placed on a photograph to identify you as the owner and contains your copyright statement.
It was reported in the magazine "Photo Pro" that advertisers and publishers are increasingly obtaining images from non-traditional sources, such as Flickr.
The Berne Convention for the protection of Literary and Artistic works was signed in 1886 by the then leading industrial countries. This convention is now applied across most countries of the world. But the United States and the UK are looking at the legislation covering orphan works which could cause confusion and a reduction in protection should the changes become law.
Currently the responsibility is placed on the prospective user of an image to preform a diligent good faith search to trace the copyright owner before using that image. Even if a search has been made and have documentary evidence of the search preformed, you could still be subject to legal action if the copyright owner makes themselves known.
To make things more complicated, America has made a modification to their copyright laws that got rid of the need to use the copyright symbol or copyright notice for all works published after 1st March 1998. This change made users assume that all works marked or unmarked are unprotected by copyright law. The US Congress also changed the Copyright Term Extension Act, which extended copyright protection for a large amount of works that were soon to enter the public domain. When images are classed as within the public domain they can be used without copyright permission.
The proposed changes in the US still requires a diligent search but it has greatly reduced the amount of damages awarded for infringement of copyright. The infringer still has to pay a reasonable sum of money to compensate the copyright owner of the image. This has opened loop-holes proving what reasonable compensation would be.
The proposed legislation gives immunity to non-profit organisations like museums, libraries, public broadcasting companies and schools. Providing those organisations stop using the image after receiving notice from the copyright owner no action can be taken against them.
Within the proposed law it is up to the copyright owner to register their copyrights to prevent their work being declared orphaned. This is not to gain a copyright but to prevent the work from being deemed orphaned.
The Shawn Bentley Orphan Works Act of 2008 was voted in by the American Senate, Senate bill 2913. This act has since gone onto The House of Representatives, House bill 5889, named "The Orphaned Works Acts of 2008". The difference between the Senate and House version of this act is that it requires anyone who is trying to avoid copyright infringement must file a Notice of Use on a work they deem to be orphaned. This notice must be filed with the copyright office before use.
In the UK the government's treasury department conducted a review into intellectual property law and included two recommendations for orphaned works:
- The intellectual property office in the UK should publish guide lines to highlight what and in-depth search is.
- The UK IPO should make a voluntary register for copyright.
These recommendations were made in 2006 and so far nothing has happened. According to the Intellectual Property Office work to identify what action constitutes a good faith search has been undertaken in Europe under the 2010 European Digital Libraries. On the 4th June 2008, a set of due diligence guidelines were published by the European Commission.
Scale Of The Problem
Senator Patrick Leahy from Vermont and Senator Orrin Hatch from Utah requested a report on Orphaned Works from the US Copyright Office. The report which was released in January 2006 concluded that there is a need to address the issue of Orphaned Work but could not provide evidence of how often the situation involving Orphaned Works occurred. The report gathered evidence from a number of universities. Sara Thomas, university librarian for the University of Cornell, said that they had a collection of 350,000 unpublished photographs that they would like to make available but only 1% have any indication as to who owns the copyright to those photos. Brian E.C. Shottlaender, university librarian for the University of California, San Diego, has more than 100,000 photographs in the Scripps Institution of Oceanography archives, of which only 4000 are available online because they are unable to find the copyright owners. The Oceanography archive is the only one of eleven libraries accessible over the internet.
So it is understandable where the immunity clause in the proposed bill came from.
Potential Solution
The Canadians have their own solution to the use of orphaned works. The Canadian Copyright Board examines the search made by users to ensure it has been diligent and been carried out in good faith. If satisfied the Board issues a none exclusive copyright license, including a licensing fee. The fee is held by the Canadian Copyright licensing agency. If the copyright has not been traced within five years of the license being issued, the collecting agency is permitted to use the fee for the benefit of its general membership. However, the arrangement only operates in Canada for Canadian copyright holders.
This solution to orphaned works does not breech the fundamental rules of copyright ownership stated in the Berne rules. In particular the part of the Berne rules that state copyright ownership must be automatic and must not, therefore, involve registration.
Registration is the biggest core difference between the Canadian model and the proposed recommended changes in the US and the UK copyright law. If artists are required to register their work to prevent them from being deemed orphaned, it would create a great administrative burden. Not only would artists have to register every image there would no doubt be a charge or registration fee. Photographers, illustrators, graphic artists, designers and print makers can produce large amounts of work in a short period of time. So to register each piece of work would take up large amounts of time and to pay for each piece of work would be too costly.
Taking steps to identify your images and the public domain
Identifying your images can be accomplished by using the metadata in your image file and / or adding a branded frame or watermark to your images. This metadata us embedded within the image file, the data can contain not only your name but your contact details.
Even though an image is viewable by the public on the internet it is still not in the public domain in the copyright sense. Public domain defined by copyright means that the copyright has expired on the image or the image was never eligible for copyright in the first place.
Conclusion
As the bill regarding orphaned works is still under review in the House of Representatives in the United States of America and still under review in the United Kingdom, it is hard to know what the final legislation will be concerning on this matter. Whatever the final outcome, photographers and those in the graphic / visual arts, will need to be aware this legislation as it will impact on the way copyrights are enforced.
Probably, the most sensible way to deal with the problem of orphaned works is to adopt a similar system to the Canadians. This is because they only issue a license to the user once they are satisfied that a due diligent search has taken place. This would prevent users from declaring works as orphaned prematurely and without carrying out a diligent search. They also charge a fee for the granting of that license and this will be held in trust for the copyright holder for five years.
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