As members of A Million People Against the Orphan Works Bill, we believe in free speech, the right to privacy, and the critical need for independent voices.  We, like so many, are deeply troubled by any government policy or legislation that affects peoples’ control over their photographs, videos, music, art, and ideas.

Please help us stop United States Senate Bill 2913 and House Bill 5889 by signing and circulating our petition” – Steve Lehman, A Million People Against the Orphan Works Bill

Foto8 has signed the petition and we urge you to do so as well.  We also encourage you to publicize the issues at stake for copyright holders with this legislation. If you are an American, you can contact your Senator and Representative.  If you are not an American, you should still make your voice heard directly as this act, should it become law, may very well impact you. And, other countries are considering similar legislation.

Orphan works are works that may fall under copyright but for which the copyright holder cannot be found.  Libraries, archives, and museums have sought orphan works legislation for some time as they are currently unable to make orphan collections publicly available for fear of being sued for infringement.  Documentary filmmakers also strongly endorse orphan works legislation that would allow them to use orphan archival footage and photographs. Proponents of copyright reform support this legislation on principle as it allows orphan works to circulate, “freeing” work and returning it to society.

While the orphan works acts currently moving through Congress were created upon these good intentions, they have important ramifications for the creators of copyright work that should not be considered orphaned, and defines a process by which copyright can be legally transferred away from an unregistered copyright holder.

Briefly (and I encourage you to read the links below) the act requires that someone who wishes to use an orphan work must conduct a “diligent” search on certified private registries for the copyright holder of a work. It’s unclear at this point how many registries the would-be user needs to look through, but once they have done so, they’ve done their part.  A copyright holder who later emerges can then demand “reasonable” compensation. Registries may charge both users and copyright holders; that’s not yet clear.

Is there an additional onus placed on creators to protect their copyright? Absolutely.  Will this allow parties, after conducting an authorized and diligent search, to systematically scrape the web for unregistered and unattributed images, stripped of metadata, and sell them as their own? It certainly seems like it, and there would be no way to know whether the work was made by American photographers.  Does the letter of this law provide loopholes that can be used opportunistically to the detriment of working photographers and artists? 

These are the concerns that David Burnett raises when he writes:

“Right now I see a potential threat to the market for art and photography by this legislation.  We are endangered by the loss of control which lies in these acts.  In the end, artists and photographers should be able to determine what happens with their work, not simply be governed by large corporations who may choose to pursue their work for comercial advantage.  It doesn’t seem like the politicians have artists in mind or really care about what happens to us, we are an after thought.

We need to think about the longevity of our work and how it is treated in the marketplace over time.  They are trying to take our rights and it will happen if we don’t act.  In a time which has seen enormous concentrations of power in the media and communications world, the ability of individual artists and photographers to determine what happens to their work is paramount.  The founders of our country, who provided for the protection of creators, and their works, would surely look askance at such legislation which removes the ability of those individuals to profit from the proper use of their works.

In a world that is already not very friendly to independent photographers and journalists, I think this bill will make it a whole lot worse and create an environment where it is even harder to produce independent stories, it truly hinders free speech.  It is already very difficult for anyone to get an honest and clear view of our society. 

That’s what it is about for me.”

RESOURCES:

David Burnett, Photographer. www.davidburnett.com

The Shawn Bentley Orphan Works Act in Senate (S.2913 ). Summary . Status .

Orphan Works Act 2008 in the House of Representatives (H.R. 5889 ) . Status .

You can read about the differences between these two acts (and also in relation to a failed 2006 Orphan Works Act) here :

Explanations of the acts and the stakes here and here .

A post about practical ramifications for copyright holders here .

What you can do after you sign the petition here .

Copyright office report on Orphan Works (includes statements by interested parties)

In an earlier editorial in the NY Times noted IP legal scholar Lawrence Lessig expressed concern about the legsislation but suggested a grace period before registration (may require registration). He has since shfited his position to be against registries and signed the petition, to the consternation of many in his community (see comments under his blog post).

Photographer Walter Dufresne has a thoughtful comment on the issue (see comments under linked post )

Illustrators’ Partnership’s letter for international artists and suggestions :

A UK orphan works registry.