Some background:

The Orphan Works Bill, first proposed by the Copyright Office in January of 2006, which was later revised and re-submitted by Texas representative Lamar Smith in May of 2006, has created quite a controversy among today’s photographers.

The impetus for the creation of the Orphan Works Bill came from the examination of Eldred v. Ashcroft which extended the copyright of a work considerably past the lifetime of the copyright holder. In examining this extension, the Copyright Office determined that the Sonny Bono Copyright Term Extension Act may create a class of “Orphan Works:” works in which the copyright owner had died or disappeared over the lengthy term of the new extended copyright period. The proposed Orphan Works Law would attempt to make such works, including many old photographs, available for reuse. Under the bill, penalties for copyright infringement would be minimal compared to current copyright infringement if an infringer tried to locate the copyright holder of a work without success. Advocates for the Orphan Works Bill include museums, software companies, book publishers and filmmakers who say it will help them use old works in the creation of new works. Essentially without the Orphan Works Bill, the public could essentially be deprived of access to new work built upon older work.

Why such a bill? (Are they insane??)

The reasoning for such a bill comes from the research of the Copyright Office which states that 96 percent of all images are deemed “Orphan Works” because it has become impossible to find the copyright owner. The main idea is that a substantial portion of American culture is lost because certain groups are afraid to create transformative works based on current Orphan Works. Representative Lamar Smith’s statement to his fellow representatives sums up the pro-Orphan Work Bill viewpoint:

“The orphan works issue arises when someone who wants to use a copyrighted work cannot find the owner, no matter how diligently they search. The owner may have moved several times, died, or in the case of businesses, changed their name or gone bankrupt. For example, a local civic association may want to include old photographs from the local library archive in their monthly newsletter, but there are no identifying marks on the photo, under current law, the civic association must locate the owner to ask permission and in many cases may not be able to find the owner. Under the Orphan Works Act, they could follow guidelines posted by the Copyright Office as a show of due diligence to reduce the threat of litigation for simply doing the right thing.”

Larry Lessig, founder of Creative Commons and advocate of the Orphan Works proposal makes a great argument for Orphan Works. An argument that I agree with in most part.

For works to remain in an uncertain limbo state- where the person who wishes to archive or transform such works does not know if they are infringing or not upon the rights of a potential copyright holder, creates a chilling effect upon the creation of new cultural works. For many types of artwork that are easily identifiable, either by signature on the work itself or as part of some identifiable labeled collection, the Orphan Works Bill serves a valid purpose. However in the case of some works, namely digital photography, the Orphan Works Bill can pose potential threats to the original purpose of copyright: to encourage photographers to create new photos, knowing that their work is protected under law and therefore licensable and valuable. This brings us to the arguments against the Orphan Works Bill.

Anti Orphan Works Bill

The pro-cultural use for the Orphan Works Bill is sound but doesn’t take into consideration possible copyright abuses encouraged by such a law. The two main ideas underlying the Orphan Works Bill are a. copyright information is attached to the work in most cases, and b. there are tools and methods in place to effectively search for the copyright owner. According to a study by the Stock Artists Alliance (a stock photography advocacy group) out of a sample of 144 images taken from the top 30 websites in the world according to alexa.com, not a single image was found to have an identifiable copyright on the image. In order for a work to be considered an Orphan Work, there must be a due diligence in searching for the copyright holder. The best practices for due diligence will be set by the Copyright Office itself, as well as reasonable compensation for mistakenly infringed works. Unfortunately the Copyright Office has no such set of tools to effectively search for unlabeled images merely through mete-data embedded in the image. In most cases photographers have not even created appropriate meta-data in the first place which states copyright ownership. In light of this the first and second premise of the Orphan Works Bill fall short: copyright information is rarely attached to images found online, and even if copyright information is attached to photographs via meta-data, that information cannot be found through the search methods proposed by the Copyright Office.

Considering what Larry Lessig has said in the preceding video, I offer my own viewpoint as a photographer on what impact the current Orphan Works bill will have on the livelihood of the independent photographer:

My Opinion

If I were to offer this opinion paper to a representative voting on this bill, I would have to advise against signing the bill in it’s current form. In the best case, the Orphan Works Bill helps some works come to light in the public eye even though the bill is an erosion of the already delicate business model that photographers rely upon for long term survival. In the worst case the Orphan Works Bill is a free license to large corporations to pirate images consistently, with a small contingency fund set aside to pay for that one time in a year when a photographer finds that their work has been pirated and demands compensation. If claimed as an orphan work, the photographer would not be able to ask for the maximum compensation of $150,000 (assuming the photograph was registered with the Library of Congress.) In essence an Orphan Works Bill would encourage the same kind of deliberate corporate violations that occur with environmental laws: it’s cheaper to pollute and occasionally pay a fine, rather than doing the right and paying what it costs to follow the law. On a smaller scale, wedding clients and other event clients when unable to locate their photographer in the Yellow Pages (because of a move or a change in marketing) would assume that they can go make reprints themselves without any kind of recourse for the photographer. The worst that would happen in this case is that the copyright infringer would have to pay what it would have originally cost to have the photographer reprint the photos; unfortunately this is a gamble most rational people would take. Under certain circumstances the Orphan Works Bill could be recommended. If both underlying problems are addressed, namely that most digitally published photos have no visible copyright or meta-data, and that there is no standardized effective system to search for the copyright owner, then the Orphan Works Bill would satisfactorily serve it’s purpose without particularly harming the average working photographer. One solution would be to invest in a copyright tracking system either in house (to be used directly through the Copyright Office) or outsourced to private contractors with competing methods for tracking copyright holders. Since the Orphan Works Bill would potentially create even more works that could be registered with the Copyright Office, the costs of creating a robust Copyright tracking system would be recouped by increased copyright applications. Secondly some sort of standardized Copyright tag should be attached to every photo in a way that cannot be stripped. This would be achieved most easily by embedding the Copyright code into the data used to represent the photo in digital form. Instead of residing in the meta-data which can be removed by people pirating pictures, the copyright would be part of the image itself, hidden in the code that determines a pixel’s color and location. This technology does not seem unreasonable and would be much more effective than even a digital watermark which many photographers avoid for aesthetic reasons. Once these issues are addressed I could recommend signing this bill.