In recent months, both Facebook and Instragram were subjected to intense backlash from users when they learned their photos could be turned over to commercial interests without their knowledge or permission.
The UK government takes it one step further with their Instagram Act, which now makes the use of “orphaned works”, for commercial purposes, law.
The Act contains changes to UK copyright law which permit the commercial exploitation of images where information identifying the owner is missing, so-called “orphan works”, by placing the work into what’s known as “extended collective licensing” schemes. Since most digital images on the internet today are orphans – the metadata is missing or has been stripped by a large organisation – millions of photographs and illustrations are swept into such schemes.
The Act also fails to prohibit sub-licensing, meaning that once somebody has your work, they can wholesale it. This gives the green light to a new content-scraping industry, an industry that doesn’t have to pay the originator a penny.
The following comment is sort of cute in its naivete. You can’t remove your work from the internet entirely, and any wahoo with a scanner can orphan your work in two seconds by altering it, or scanning it from a book, original drawing, or photo, and uploading it for you. No pesky metadata to remove!
In practice, you’ll have two stark choices to prevent being ripped off: remove your work from the internet entirely, or opt-out by registering it. And registration will be on a work-by-work basis.
And people wonder why I spent so much damned time in Washington.
Why I bother…
Good luck, creators. You’ll need it.
The original Orphan Works legislation did not make it through the Senate here, but you can bet it will be back. I blogged about it extensively
My old blog was shut down in January 2009, but I was able to recover the original content of my Orphan Works Bill post, dated September 2008. Here it is in its entirety, after the cut. I love you, O My People, but not enough to take the time to restore the links. I’m on deadline.
Read on anyway.
Worst case scenario: the Senate has passed the Orphan Works Bill and the wording of the Senate bill is even more hideous than that of the House bill. The bill is not law, but may become law if we all do not act now.
That this bill was hotlined without open debate during a financial crises speaks volumes about the nature of this bill, and of those who support it.
Here is a direct link for writing your Senators and Congressman.
Concerned persons outside the US should also be sure to sign the petition and contact US legislators as the nature of the bill will also effect your copyrights.
You will no longer have the same copyright protections when you create your works. Without being listed in a database for which you will probably have to pay, your work may be considered “orphaned”, and the copyright infringer will be in the position of deciding the “fair rate” to pay you for use, assuming you ever find out your work was stolen. Oh, excuse me, “used”.
The infringer must conduct a “reasonable search” to find the copyright holder, but the bill doesn’t specify what all that means. And how one can prove one made that search. Documents? Which documents? How? Google?
Apparently, if you didn’t make a diligent effort to find the copyright holder, you aren’t protected by this bill, but what the heck is a diligent effort?
“…reasonable under the circumstances.”
Whew, I’m glad we cleared that up.
Considering how easy it is to alter works in Photoshop and re-post them to the internet where those works are passed around the world in minutes, making an orphan out of any work of art is simplicity itself.
What is even simpler is realizing that if you didn’t create it, it isn’t yours in the first place. Don’t use it. Duh.
The normal copyright rules will not apply to infringers who take advantage of this bill. The creator will not be entitled to statutory damages for copyright infringement under this law, and the specifics of the costs of those damages will make it impossible for almost any artist to seek remedy in court. Moreover, there is no way to find out who has searched this non-existent database and what images have been listed as “orphaned”.
There will be no way to collect fees to cover the costs of legal remedy, in many cases. If an infringer decides your work is worth $1,000 (if they say that is “reasonable” and the wording of the law keeps repeating the word “reasonable” as if that means anything), then the amount you may collect will be limited to “reasonable” – that “reasonable” $1,000. Which may very well be “reasonable” to the person who used your work, but not so reasonable to you. This is a law which puts the person or organization which took your work without permission in the position of telling you how much that art is worth. Most artists will not be in a position to fight a copyright infringement where they will not be able to collect statutory damages to cover legal costs.
This law should be limited to academic use, museums, and libraries, and should in no way confer orphan works status to anything that will be used for commercial purposes. It is not only unworkable, it is monstrously inequitable, and it is a gross violation of the Berne Convention.
Am I the only person who thinks the concern over the use of these works in museums, libraries, etc. could have been dealt with by a clarification in the already existing Fair Use Statute?
An order requiring the infringer to pay reasonable compensation for the use of the infringed work may not be made under subparagraph (A) if the infringer is a nonprofit educational institution, museum, library, archives, or a public broadcasting entity (as defined in subsection (f) of section 118), or any of such entities employees acting within the scope of their employment.
OK, that works for me. But this law doesn’t just make butterflies dance and unicorns glow for libraries, it makes copyright infringement a lot easier for commercial usurpers and it makes compensation for commercial use a lot harder to collect.
It’s hard enough to collect from clients with whom we have contracts! How to collect from people we never heard of? In another state? Another country? Since this law will forbid the creator from collecting statutory damages on infringement, the creator is stuck accepting whatever crumbs the infringer wants to dole out. There will be no way for many artists to afford to seek remedy across state lines.
But also as important, it will allow the public to view works that may remain orphaned. A Vermonter can restore a family photograph from three generations ago, even when the original photographer is no longer available to give permission.
That’s one heck of a dopey strawman argument Senator, but I have yet to witness legions of photographers descending on photo restoration businesses to stop grandmas across the nation from restoring their shots, nor have our courts been clogged with petty arguments over the antecedents of the faded snaps in the family album.
It also makes me question whether or not Senator Leahy understands that the copyright on Grandma’s photo from three generations ago has, likely, already expired. You’d think the Senator who is behind this bill would have considered that.
The reason everyone is fighting over the images: the billions in ad sales resulting from the online searches. Google is the current leader and is now courting Yahoo. Besides the billions of dollars generated from the ad sales, these giants will also make additional money off registration and searches as well.
Companies that create no content of their own, and make money solely on the backs of other people’s content, are raking in billions through advertising revenue and IPOs. Google takes the position that everything may be freely copied unless the copyright owner notifies Google and tells it to stop. That sounds familiar. http://news.softpedia.com/news/Microsoft-Attacks-Google-For-Copyright-Infringement-48665.shtml & (http://www.msnbc.msn.com/id/24543408/page/3/)
Google is hooked up with Getty (images sales again) and AOL (Shawn Bentley went from the US government to work for Time Warner – owner of AOL – as VP of IP and Global Public Policy after he worked in the senate and some of the legislation he “…helped write are among the most important laws in the intellectual property world: the Satellite Home Viewer Improvement Act; the Digital Millennium Copyright Act, the American Inventors Protection Act, the Patent Fee Integrity and Innovation Protection Act, the Anti-Counterfeiting Consumer Protection Act, and the Trademark Dilution Act, just to name a few.” http://thebloodofpatriots.com/rag/?p=25
How will the database work? Who may register and use it? Is it a public database or a private database? Will images appear as thumbnails, or will entire pages of work be posted large enough to make image piracy even easier than before?
And say, if these registries will be in a position to make advertising money off searches for our work, I’d like to be in a position to make royalties off those advertising fees. Howzabout requiring Google and other searchable databases to pay into a royalty fund to be divided among authors and artists? Similar to the library royalty scheme paid to authors in England?
How’s that for fair, Google?
Why don’t they just call this law by its true name? Copyright Squatting.
I spent many months fighting this bill, and I spent hours writing this post.
And now I’m going to cry.