News - Orphan works: A license to steal | Olsen Portfolio

This news is not new, but it is developing. This serves to bring those who are not aware up to speed.

What is this 'Orphan Works Bill'? And why does it have so many visual artists so upset?
To answer the first question, perhaps it is best to first explain why this bill came into being in the first place. Imagine coming across a piece of literature, a photograph, or an illustration for instance, of which there is no declaration of who the 'author' is, nor how to get in contact with this person. Yet you wish to use it commercially (as you may deem it to have commercial value). Two groups of users are endorsing the creation of such a bill that will 'recitfy' this situation:

Anti-copyright crusaders, organizations and corporations with the intent of profiting from unidentified intellectual property while negating the possible reprecussions of current copyright infringement.

Occupations such as librarians, historians, educators and documentary filmmakers to mention a few, who stand firm in the belief that unidentified intellectual property (including, but not limited to - archival documents, photographs, oral histories and film, all of which especially contain some historical significance) should be available to the general public (but is currently not, due to undetermined ownership).

Basic Overview

For the sake of extreme brevity, the following is an over-simplification of what the proposed Orphan Works Act entails. The links within the last section in this article (entitled 'What can be done to change it?') as well as additional resource links included at the bottom of this page explain this in greater (yet simple and understandable) detail.

In a nutshell, if the author of any creative property cannot be found, the work in question would be regarded as 'orphaned work'. The conditions that enable an 'infringer' to utilize orphaned work are based on the premise that he / she has done their due diligence in (to paraphrase Marybeth Peters of the Register of Copyrights) 'taking all reasonable steps, employing all reasonable technology, and executing the applicable search practices to be submitted to the Copyright Office by authors, associations, and other experts'.

In the event the author in question discovers an infringment on his / her intellectual property rights, the author would initiate contact with the infringer, and in a perfect world, the results would be such that both parties would negotiate fair compensation in good faith. In the event this fails, then legal actions can be taken against the infringer (there are caveats with regards to what kind of damages are recoverable).

There are two versions of the Orphan Works Bill. One from the Senate, the other from the House Judiciary (both of which have undergone more than one revision). The 2006 versions have been withdrawn, yet newer 2008 versions have surfaced.

Basic problems

Time to answer the second question by pointing out a few key issues that plague the 2008 Orphan Works Bill. The current set of laws are more likely to deter rampant infringement due to consequences (such as statutory damages, attorney fees, injunctions against infringement, etc.. the caveat here being that the author must register his / her work in order to be entitled to such damages) that make infringement in itself risky. Under the new proposed Orphan Works bill, the consequence amounts to 'reasonable compensation'. Thus, by detering current repercussions, infringers might become encouraged to futher exploit 'orhpaned work' in the future.

The proposed bill is so broad in scope, it leaves plenty of room for misinterpretation and abuse. The bill is purportedly stated to benefit libraries and museums by example, yet qualifies work as 'orphaned' when the valid copyright owner is unlocatable. A problem becomes immediately obvious; if individuals, corporations or other business entities cannot find the rightful owner of the intellectual property in question (or even worse, makes modifications with the intention of rendering such property as 'unidentifiable'), the doors to commercial exploitation would be wide open.

Another glaring issue is in the ease of digital altercations. Using an image by example, while the valid author / copyright holder can include a formal copyright notice (and include their name and contact information) in the image (in both pixel and metadata format), nothing stops an infringer from removing these elements and redistribute the newly manipulated version and thus declare that they could not conclusively find the author.

There is discussions of authors requiring to file thier intellectual property with (currently non-existent) privatized registrars if they desire protection against infringers from using their work (these registrars would in effect be databases that an 'infringer' would need to look up to find the author in question). Under the current Berne Convention / Copyright Act, authors are not by law required to register their work and still have their rights protected (not to be confused with lawfully enforced). Not everyone can afford to register every intellectual property of value, thus putting a un-warranted financial strain on them. To make matters worse, any number of these privatized registrars could be created. Should an infringer only search those which the author has not registered with, they can claim they have 'searched with due diligence'.

To expand on a point made in the basic overview, in the event the author discovers that his / her rights have been violated, and assuming the author can track down the infringer, both parties involved would in all likelyhood attempt in negotiating a settlement for fair compensation in good faith. If such a settlement cannot be reached, the author would bear all costs on his / her behalf in taking legal action. The bigger problem is the outcome of litigation based on the court's interpretation on such elements including reasonable search and compensation efforts. There is no guarantee that the outcome would be favorable for the author in question.

Additional problems for the author would include the loss of leverage to negotiate fees for already infringed work which may be higher than the infringer is able or willing to pay. The loss of exclusive rights of the author to create derivative works. If entire infringed work is included in an infringed derivative use, the copyright of the derivative work amounts to a copyright of the original. The inability of a freelancing author to guarantee to his / her paying clients that their work will not be legally infringed upon. The list goes on...