Orphan Works - You thought it was all over?

jerry12953

jerry12953

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Jeremy Moore
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Last spring the Orphan Works clause (s43) in the Digital Copyright Bill was thrown out by Parliament. The victory was short-lived, however, and the Hargreaves Report (or Google Review, as it has become known) recommended a similar scheme for "Extended Common Licensing" of "Orphan Works" which is likely to mean the end (as we know it) of automatic Copyright Protection for all creative works.

I don't pretend to understand all the legal nicities of the proposed scheme, but those that are interested can look into it further below.

Yet another period of consultation is underway. Perhaps they didn't get the responses they wanted the first time round?

And by the way, this affects ALL photographers, not just the professionals!

http://http://www.theregister.co.uk/2011/12/16/hargreaves_ip_consultation/
 
I am not sure I even understand your post Jeremy :shrug: See if you can sum it up in a couple of sentences for me :thumbs: ;)
 
Er....okay......

You know that Copyright automatically exists the moment an image/work is created?

Were you aware of the Orphan Works proposals (aka Section 43) which went before Parliament in Spring 2010 but were thrown out? Orphan works are photos, paintings, creative works in general for which the owner/creator cannot be identified. It includes items in public collections whose owner/creator cannot be identified because they were gifted and the benefactor has died - that sort of thing.

HOWEVER it also include any digital image whose copyright info has been stripped out, deliberately or otherwise, for example by many websites that photographers upload their images up to.

It was proposed that these should be made available to businesses, institutions, etc for COMMERCIAL use for a nominal fee (or no fee at all), once an unsuccessful "diligent search" has taken place. No definition of diligent search has been offered.

This proposal was rejected by Parliament in the last minutes of the Labour Govt thanks to the efforts of the Conservatives and Libdems. Now however, following representations to HM Govt by, among others Google, a further review has taken place which is re-visiting the idea of Orphan Works legislation, with a view to re-introducing it.

It would also involve a very complex system of "Extended Common Licensing" which would allow Orphan Works to be made available for COMMERCIAL as well as cultural use for a minimal payment if the rights owner cannot be identified. It is possible that Professionals and other concerned rights owners would be able to opt out of this scheme to protect their rights, but the vast majority of the images from amateurs on the internet (eg flickr) could be legally pinched and used by businesses for profit on the payment of a small fee.

It would mean, in effect, the end of Copyright protection as we know it.

As I said I am not an expert but I feel that ALL photographers should be made aware of the stuation rather than just pros who may already have their eye on the ball. Pros would suffer because businesses are likely to take advantage of Orphan Works/ECL to get free (or almost so) images rather than paying to create or license new images.

I would urge people to have a look at the link I included and take it from there.
 
Well that whople piece made zilch sense, so I'm now reading the actual official report. Far easier to understand, and so far i'm agreeing (haven't finished reading it yet though).

EDIT: I am referring to your original link, not what you just wrote!)
 
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u8myufo said:
I am not sure I even understand your post Jeremy :shrug: See if you can sum it up in a couple of sentences for me :thumbs: ;)
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Can I have a go?

"Orphan works" are those for which a potential user is unable to identify or contact the owner. This is a misleading and emotive term because it implies that the works have been abandoned by their owners. The reality is that most so-called "orphan works" are unauthorised copies which have been stolen from the owners without their knowledge.

Section 43 proposed that people should be allowed to use and exploit "orphan works" for commercial purposes. The potential user would need to establish that they were "orphaned" by conducting a "diligent search" for the owner / rights-holder, but in practical terms that's no protection for the owner.

Extended Common Licencing is a proposal to make copyright an opt-in process rather than automatic. If you don't register your work for ECL then by definition it's an orphan.

It's the combination of ECL and the proposed s.43 which is particularly unpleasant to rights-holders (including all photographers).

How did I do?

Lots more information here: stop43.org.uk.
 
StewartR said:
Can I have a go?

"Orphan works" are those for which a potential user is unable to identify or contact the owner. This is a misleading and emotive term because it implies that the works have been abandoned by their owners. The reality is that most so-called "orphan works" are unauthorised copies which have been stolen from the owners without their knowledge.

Section 43 proposed that people should be allowed to use and exploit "orphan works" for commercial purposes. The potential user would need to establish that they were "orphaned" by conducting a "diligent search" for the owner / rights-holder, but in practical terms that's no protection for the owner.

Extended Common Licencing is a proposal to make copyright an opt-in process rather than automatic. If you don't register your work for ECL then by definition it's an orphan.

It's the combination of ECL and the proposed s.43 which is particularly unpleasant to rights-holders (including all photographers).

How did I do?

Lots more information here: stop43.org.uk.
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Well, I understood it, Stewart....but then I understood my own post as well.....:gag:

It is VERY complex once you start looking into what Hargreaves SAID, and then what he might have meant - or how it could be intrerpreted.

It looks like very bad news for photographers and all creators. But good news for large institutions, organisations and businesses, and for HMG. The latter because if the minimal ECL fee for an "orphan work" remains unclaimed then it passes on to.....HMG!
 
Alan Clogwyn said:
Well that whople piece made zilch sense, so I'm now reading the actual official report. Far easier to understand, and so far i'm agreeing (haven't finished reading it yet though).

EDIT: I am referring to your original link, not what you just wrote!)
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I am glad that's what you meant, alan......
 
jerry12953 said:
I am glad that's what you meant, alan......
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I was reading whilst you were typing, so it was bad timing that my reply landed below yours.

Now the wording of the report is:

"4. Orphan works. The Government should legislate to enable licensing of orphan works. This should establish extended collective licensing for mass licensing of orphan works, and a clearance procedure for use of individual works. In both cases, a work should only be treated as an orphan if it cannot be found by search of the databases involved in the proposed Digital Copyright Exchange."

That last bit does sound potentially scary, as how would you ensure that your image was filed in the database? I would like to think that upload to any major website, Getty, Flickr etc would automatically add the image to the database but it still would not protect you if you have for example your own site. I would assume that as part of any such system there would have to be a creators' front door where you can go and register your works. I can see how that would effectively make copyright an opt in system.

I can also see it from the other side - I have wrote a book, but to publish it would lead to allsorts of copyright issues because a lot of the supporting material I have no idea who owns copyright on it. I also have in my collection a copy of an old photgraph from Gwynedd Archives. If I wish to use that, I pay them a fee and I get a license, no problem, but I know of other copies of this photo, some even published giving credit to different sources, so if I was to use it, who's permission would I need?
 
Regarding the photograph, it may be out of copyright. Why not contact the Archive and ask?

I must admit i have no expertise on this sort of thing. However I think most photographers and their represenatatives agree that there is a need for using GENUINE orphan works for cultural purposes, but the proposals are so over-reaching that the result could be a disaster for creators.
 
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I see that's not actually correct, Rich. There's a two tier system. From Wikipedia.....

While copyright in the United States automatically attaches upon the creation of an original work of authorship, registration with the Copyright Office puts a copyright holder in a better position if litigation arises over the copyright. A copyright holder desiring to register his or her copyright should do the following:

1.Obtain and complete appropriate form.
2.Prepare clear rendition of material being submitted for copyright
3.Send both documents to U.S. Copyright Office in Washington, D.C.

I'ver read that if you can expect much higher fees in the US if your image is registered and then pinched , than if it were not registered.
 
RichHobson said:
Sounds like the American System, whereby you have to register each image for it to be copyrighted.
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That's not quite right. In the USA you don't have to register anything. Just like in the UK, copyright automatically attaches upon the creation of an original work of authorship. But some sources say that registration with the Copyright Office puts a copyright holder in a better position if litigation arises over the copyright.
 
That's twice now that I've been typing replies as the same time as you Jerry, but obviously you're faster on the keyboard!
 
The difference in the US is that without registration you can only claim for usage, because without registration you can't claim for damages or legal fees, IP lawyers generally won't take a case for an unregistered image.

This is interesting for us in the UK, because if someone from the US nicks an image from us, we need to use the British courts to sue. Because we could end up out of pocket using the US courts.
 
Had heard about this when it was first m opted - only just remembered it after reading your post. Will read the report thingy ASAP - might be interesting :)
 
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