20 July 2008
Orphan Works - TWIP
Posted by
Scott under:
Articles
For our US audience concerned about protecting their images from Copyright infringement, you should be a aware that a new “Orphan Works” bill is working its way through the US Congress. This bill could substantially weaken your rights when it comes to protecting your photos from unauthorized use.
A group of interested parties has created a web site that you can use to communicate with your elected officials about Orphan Works legislation. Please consider visiting the site today and taking action. If you rely on someone else to stick up for you, it might be too late.
PS: If you have comments on this legislation, feel free to leave them. This is NOT the place to tell me you think we shouldn’t have Copyright protection. Those comments won’t be moderated through.
21 Comments so far...
Stephen Cupp Says:
20 July 2008 at 9:10 pm.
For photographers as long as you attach IPTC and EXIF data with current contact information you should be set. Obviously looking in the photo you want to use for that data would fall in the good faith effort to find out who the owner is.
Jason Says:
20 July 2008 at 9:23 pm.
Great site there Scott! Another one that has been put together with a similar spin but more current letters, and content (and is a tad bit easier to read if I may humbly suggest) has things like posters, flyers, and such that you can download and print and distribute locally, and is over at http://www.defendyourart.com. This one was put together by a growing body of NAPP members…
Scott Says:
20 July 2008 at 9:38 pm.
@Stephen Cupp if only that were true. You should dig a bit deeper. The law is so vague that no current technology comes close to protecting against the potential harm this change could do.
David Says:
21 July 2008 at 5:29 am.
@Stephen Cupp,
Exif data is frequently stripped by programs and websites. By default Flickr strips the image of all Exif data.
@Scott,
US shooters are not the only photographers that have to worry about this bill. As long as the infringement happens in the States then jurisdiction falls to the US courts where the Orphan works will be enforced………Because of the interest, the Orphans works bill effects photographers world wide. I have written my MP in Ottawa stating how the Orphans works will effect Canadian Photographers and how I want the Canadian Government to put pressure on the States to not pass this bill. I suggest other photographer around the world to do the same and contact their government and express your worry how a Bill from the US can effect your rights to earn a living from your copyright
Bryant Johnson aka Yarnspinner68 aka DBJohnsonPhotography Says:
21 July 2008 at 5:43 am.
Thanks for blogging about this, Scott! I have been in weekly contact with both of my Senators and my Representative. All three state that they are aware of the bill and will take steps they can to protect our copyright protections. However, I long ago lost faith in politicians (of either party). The fact that this bill exists simply shows that even the government is more concerned and listens to the old Napster crowd (i.e. “I want it so I should have it.”).
David Says:
21 July 2008 at 11:51 am.
@bryant-I’m not sure that Napster statement is fare, this is a need for an Orphans Works Bill. There is tons of copyrighted work sitting around the education and musiums would like to use but can’t because no CR owner can be found. The problem with this bill is how it is worded and how it will be put into play
Mathew Ballard Says:
21 July 2008 at 3:21 pm.
I got response letters from my congressmen last week stating how they support the bill and feel that it will make things better. I tore both of them up.
Don Schaefer Says:
21 July 2008 at 6:54 pm.
Thanks very much for this, Scott. It will be a big week in Congress. I hope all your readers will fax and call members of the House Judiciary Committee this week. In addition to the IPA links you posted, here is a direct link to a simplified page on how to act quickly this week:
http://anti-orphan-works-act.com/
Jason Says:
21 July 2008 at 8:01 pm.
One of the most infuriating things about this OWA legislation is that it is a direct contradiction of the DCMA (Digital Copyright Millennium Act), which allows for passive copyright. The DCMA allows for us to control the reproduction of our work without having to sign or register it formally with any body or governing authority. (Thanks to the Berne Convention.)
I am also willing to venture that our wonderfully informed leaders have no idea that voting to pass the OWA would effectively negate the DCMA and thus withdraw the US from the Berne Convention.. I thought we could only withdraw from international agreements with a 2/3 vote of the Senate and Presidential approval. But yet, somehow some hidden influential entity has been able to push OWA to the flor of both houses of Congress in sucessive years. Care to guess who is behind the scenes pushing for this? Comcast and other large multimedia companies!
@David: There is nothing good about this legislative effort - it will harm artists, parents, children, models, small businesses, and pretty much everyone at an individual level - it was designed by, and is now being pushed through Congress by corporate America to limit their liability for fines and punishment when they knowingly (but not illegally due to this crap) use artist imagery without consent. All they have to do is say “We searched the Copyright Registry and found nothing identifying the artist.” It has been worded that way intentionally. I agree that the educational and museum true “orphan” works are what should be freed up for use, and that is the guise our elected officials are using to try and get this through, but because of the wording, it will do far more harm than good, which is why it needs to be discarded and they need to start over.
This also shows why it is imperative to register your works with the Copyright Office. You can send in DVD’s
Bryant Johnson aka Yarnspinner68 aka DBJohnsonPhotography Says:
21 July 2008 at 10:23 pm.
@David I don’t think my statement re:Napster is unfair at all. The museums, education organizations, and cultural groups are the poster children for this bill and are most frequently mentioned to counter any argument advocating the preeminence of the copyright of the artist. It amazes me that the politicians think the needs of those groups needs new legislation when the clear solution is to append the definition of “fair use” or provide some type of protection EXCLUSIVELY for groups that fall into those categories for non-commercial uses.
Gee! I just solved the problem in a tiny fraction of the amount of their legislation. Too bad “common sense” is extinct in Washington and the various state houses around the country.
Don Schaefer Says:
22 July 2008 at 5:43 pm.
Well, this is not Congress thinking this up. They have much bigger concerns. The people who wrote this bill - Getty, Corbis, Google, “Hollywood” - kept this under the radar for a reason - they wanted it to pass uncontested. In other words, Rep Berman in the House, and Senator Leahy in the Senate tried to get this bill passed with a procedure called “UC” or uncontested. Each sent out a “Dear Colleague” letter singing the praises of the bill to give it the illusion of a harmless piece of legislation that needed not further consideration, just as a “Save Kermit the Frog Day” would be harmless. It worked for the Democrats in the Senate. Not so for the others, so far. That’s why you need to make your voice heard - to let others in Congress know this is NOT harmless, quite the opposite.
Here’s the quick link for action this week:
http://anti-orphan-works-act.com
Scott Says:
22 July 2008 at 5:46 pm.
Okay folks we have enough links here. With several different links being posted, it will no doubt dilute the ability to be impactful through any one so I won’t moderate any more links to various organizations’ web sites pushing out info on this cause. Pick one and use it. It’s all geared toward doing the same thing so who cares who gets credit?
christopher mitchell Says:
22 July 2008 at 8:21 pm.
I realize you said no more comments with links, but I have a different take and have to take issue with your comment about comments regarding whether we should not have copyright protection. Of course we need copyright protection. However, there needs to be a limit to copyright protection - Disney should not be squatting on Mickey Mouse forever, having made its fortunes with works from the public domain. The point of copyright is to advance society’s interests, not just that of the author. Needs must be balanced.
For an alternative view on orphan rights - what the problem is (it is not just a way of depriving photographers of their work), those interested can check out a podcast called Rules for the Revolution which talked about it recently.
Don Schaefer Says:
22 July 2008 at 8:25 pm.
Scott, i wanted to clarify that the link I posted gets one to important action needed this week, as requested by the IPA link you kindly posted. For someone new to the Orphan Works issue, it is a great resource, but it is rather hard to find the important call from the IPA to contact the House Judiciary Committee members this week.
I was one of the thirty people who went to Washington this June, along with the IPA president and representatives from many other organizations, to advocate against passage. We are all “one cloth” working to the same purpose. Yes, please go to the Illustrators Partnership site to become fully informed, but please, also, contact the House Judiciary Committee members this week with your objections to Orphan Works. Thanks. :>)
Scott Says:
22 July 2008 at 8:30 pm.
@christopher mitchell just curious - what sort of limits should we put on YOUR Copyrights - I see that you have placed a Copyright notice on your website. Do you accept that the Copyrights you own should be limited and if so how?
I’m willing to allow folks to present alternative views - just so long as they aren’t working to reduce MY rights - of which I am willing to give up exactly none.
Jason Says:
22 July 2008 at 8:31 pm.
Good point on the links to action Scott - I would agree that “credit” over motivating people to action doesn’t matter as much as action does - the bottom line is that if you want Congress to actually stand up and not rubber stamp this, the only way to do so is to let them know - often and loudly if you can. It doesn’t matter what site you go through, just tell your representatives in both the House and Senate that you oppose this legislation, and that they will lose your vote for re-election if they pass this through. Let them know that we will hold them accountable for their actions!
While opposing this legislation is half the battle, the other half is to register your work through copyright. If you register through the copyright office, your work will not be considered “orphan” anyway, so you should be fine. Please still though, let your voice be heard to support your fellow photographers and the artistic industry as a whole.
christopher mitchell Says:
24 July 2008 at 7:03 am.
@Scott, et al.
I’m confused about why we are talking about what limits as though their should be none. I should note that my comments only apply to US citizens - something you have indicated you are thrilled to be. So I doubt you are unfamiliar with the importance of the Constitution.
Congress sets copyrights - Article 1, Section 8: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
For the purposes of my argument, the key aspect is for “limited” times. Thus, it was never intended for you to have copyright forever. If you do not like that, good luck amending the Constitution. At least you will have Disney and other corporations on your side.
So long as we are arguing about time frame rather than whether it should be limited, the point of orphan works legislation is so that in 50 years, when the children of an athlete that I photographed want to use one of my photos in an article about their family perhaps, they are not prohibited from doing so after making good faith attempts (and there will be a procedure, well publicized, that must be followed) to find me and work out a deal.
Orphan works is an important fix to problems (mostly in video and print, I believe) in which people cannot track down copyright owners who produced something 50-60 years ago and, in many cases, have no interest in maintaining their copyright anyway.
This legislation should, at a minimum, make it easy for those who want to retain all their copyrights to do so, while also allowing non-maintained copyrights to fall into the public domain for societal betterment, as was explicitly intended by the Founders.
The real problem is a Congress that has bowed to the wish of the Disney corporation (by greatly extending copyright time frames) to use the public domain as a well for ideas without contributing anything back - which is explicitly what the Founders wanted to prevent.
Copyright has never been about merely protecting artists and creators. It has always been a balance between creative rights and the importance of public domain. That balance is now out of whack and the Orphan Rights legislation is an attempt to deal with a symptom of that imbalance.
Scott Says:
24 July 2008 at 8:40 am.
@christopher mitchell
When you put words in my mouth and mischaracterize what I say Chris - you already start out showing that you’re on less than solid ground.
Let’s start by me completely debunking your comment as of the first sentence. Please go find the podcast, blog post or video related to this site where I say that I am thrilled to be a US citizen. I’ll patiently wait here for you to do that.
Of course because you want to prove a point that simply doesn’t need to be made by the way, you’re engaging in hyperbole and distortion.
I’ve never said I am proud to be a US Citizen.
Now - thank you for the lecture on the role of Congress here, but it was unnecessary given the fact that I have demonstrated a fairly deep grasp of the statutes surrounding Copyright.
I have never ever once said that I deserve to have Copyrights forever. I have never said there should be no limits. So again, you’re arguing about something that’s silly. Prove me wrong - show me where I said that and again, I’ll wait here for you to do so.
If you can’t do those first two things, please start your next comment by apologizing for mischaracterizing my position.
As to the meat of it - I agree there should be limits.
Now where we actually disagree is here. You say…
“the point of orphan works legislation is so that in 50 years, when the children of an athlete that I photographed want to use one of my photos in an article about their family perhaps, they are not prohibited from doing so after making good faith attempts (and there will be a procedure, well publicized, that must be followed) to find me and work out a deal.”
The REAL reason is to weaken Copyright legislation - everything else is smoke screen.
And you’ve exposed yourself as just another run-of-the-mill Disney hater. Personally, I don’t care about the Disney stuff one way or another.
But as a photographer depending on my Copyrights to earn a living in my waning years, it’s a big deal to me that this Legislation would create the following problems for me…
1 - It’s so vague on its face as to make any of my Copyrights unenforceable for all time - now - and in the future.
2 - Companies who make the most remedial showing that they tried to find the owner of a photograph, i.e., one search in a local database, will be able to harvest millions of images for use claiming they couldn’t find the owner.
3 - It will create overburdensome and unduly expensive registration processes that STILL won’t guarantee that the photographer gets paid.
4 - It shifts the burden to the photographer, away from the infringer.
5 - It would create a flood of court cases as affected parties rushed to court to sue over the vague terms like “reasonable compensation.”
6 - There is no provision in the legislation that would prevent such profiteering. Any online database allowing browsing of images that are potential orphans could easily become one-stop-shopping for anyone seeking to use images for free.
7 - It would turn the notion of a model release on its head allowing the subject of the photo, not the maker to, license the image.
I’m just getting started here. This legislation is shockingly bad.
I understand the need for a change. What I don’t understand is the need to effectively destroy an entire industry as a means to do it.
If this legislation passes as proposed, there will be such a huge negative impact that even those who support it now, will later wish they hadn’t.
Perhaps you Chris are merely here shilling for the anti-DRM crowd or some other party who hopes to profit from the change that would come if this passes. Or perhaps you’re simply unaware, uneducated and unconcerned about how it impacts anyone but you. Whatever your real motivation, I urge you to spend five minutes thinking about how this will affect someone other than yourself or the causes you represent and ask if you were in their shoes, how would you feel?
christopher mitchell Says:
24 July 2008 at 9:06 am.
@Scott
I appreciate your long response - I think we have both said our points and neither of us wants to continue this disagreement.
My comments about your being thrilled to be a US citizen was not a quote, it was my impression of our comments on the most recent show in which you talked about the superiority of the U.S. vs. Great Britain on the basis of first amendment freedoms. Sorry to have characterized any opinions you have. That was the impression I took from your comments.
As for hating Disney, I quite enjoy some of their products. I am angered by corporations and individuals that show a disregard for the betterment of society through narrow self-interest. I see Orphan Works legislation as solving one of these problems.
I have no doubt this legislation has imperfections, but I believe you are exaggerating them and their effects. I believe the best solution is for legislation that properly balances the interests of copyright holders with society’s interest rather than nipping at the edges with something like this Orphan Works. I suppose I have made that point as best I can right now and I appreciate your indulgence.
Scott Says:
24 July 2008 at 9:15 am.
@christopher mitchell you’re right - we’ve both expressed our views. But you’re wrong about me exaggerating the problems. I didn’t even list half the real problems. I can promise you this is going to get very ugly. I have no doubt some bill will pass and probably a bad one. I am spear-heading a group that will sue to change it right away. Litigation over this will last decades and cause headaches for a long time. If there’s any chance to mitigate that now - I want to help do that.
As for narrow self-interest - yeah us mean old photographers actually have the nerve to think we should get a paycheck and make a living like you and everyone else.
For those who support your position, I am sure there will be equal efforts. Let the games begin.
Donald Weller Says:
6 August 2008 at 12:43 pm.
I think the Orphan Works Legislation is a good idea implemented by stupid monkeys. There needs to be a way to use works that you legitamately cannot find the copyright owner. There needs to be a way for corporations like Disney to continue to use their creations and maintain their copyright without breaking the system by perpetually extending everyones copyright. It needs to be the responcibility of the user to not infringe on copyright. there needs to be a way for the owner to batch process documenting works as belonging to him or her. We need to set the duration of copyright and patents back to what the constitution originally set. as that is plenty of time for most people. there should be a system for the owner of a work to extend the copyright of an item in a case by case basis. IE disney should be able to extend the copyright of Mickey Mouse without dragging the rest of the universe along with them.
