Legislative

Orphan Works - Resources

Resources & Links

Following are links to commentary posted by fellow associations, along with other sources, which further help explain the specifics of the current draft legislation, as well as provide a range of perspectives. We will add to this list as more resources become available.

SAA Orphan Works Page
SAA Orphan Works Blog

American Society of Media Photographers (ASMP) Orphan Works Page

Advertising Photographers of America (APA) 2008 Orphan Works Position Paper

Illustrators' Partnership of America (IPA) Orphan Works Page

John Harrington's Photobusinessforum blog

Public Knowledge.com Blog Post

Following are links to key documents referenced in SAA's commentary:

2008 Orphan Works Bills:
House Version: H.R. 5889, Orphan Works Act of 2008
Senate Version: S.2913, Shawn Bentley Orphan Works Act of 2008

Copyright Office Report on Orphan Works, Jan 2006

House Subcommittee on Courts, the Internet, and Intellectual Property Hearing on Promoting the Use of Orphan Works : Balancing the Interests of Copyright Owners and Users, March 13, 2008

U.K. Gowers Review of Intellectual Property, Nov 2006

SAA's Orphan Works 2008 commentary was prepared by:
David Sanger, SAA Legal Chair
Betsy Reid, SAA Executive Director

Orphan Works - Recommendations

SAA Recommendations to Congress

We urge Congress to amend this draft legislation to expand on the new ideas they have put forth which seek to minimize potential abuse, and better balance the needs of those who legitimately seek orphan works exemptions while better serving those who seek protection of their copyrights.

Specifically, we propose the following:

Regarding the Provision for Certified Private Searchable Databases:

1. Before any Orphan Works law goes into effect for visual works, there be at least two certified searchable databases in service (removing the alternative effective date of Jan 2013)

2. Best practices specified by the Copyright Office would require anyone seeking the Orphan Works exemption to search both databases should they fail to find the copyright owner in one search.

3. At least one of these databases allows copyright holders to submit works without fee or charge. (The financial support for such a system should come from the prospective users of the works, and not from the artists whose copyrights are being challenged by the effects of this legislation.)

4. All images registered with the U.S. Copyright Office through their new online registration system be automatically added to the searchable databases upon upload, and that provisions be made for the transfer of all electronic deposits made to the Copyright Office to both databases.

5. New exemptions under this statute be available only for as long as the Copyright Office can continue to certify that such searchable databases are fully functional. If this ever ceases to be the case, then new Orphan Works exemptions would no longer be available.

Regarding the "Notice of Use" Provision:

1. There be a fee for filing a "Notice of Use."

2. A copy of each work be included in the "Notice of Use" filed by an infringer.

3. A "Notice of Use" be required to have specific detail not just "how" and images is to be used (e.g. "print," but exactly "where the image will be used, including name, date and location of publication.")

4. The archive of "Notices of Use" of claimed orphan works exemptions, containing the digital copies of the work used, be available to registered copyright holders so that they can perform a visual search for infringements of their images.

Regarding the Provision for Reasonable Use Fees:

1. The exemption for payment of reasonable use fees by nonprofit educational institutions, libraries or archives be removed. These entities are well accustomed to paying usual licensing fees and ought to continue to do so, just like other infringers, if the owner of an "orphan work" presents a legitimate request.Regarding Best Practices

Regarding Best Practices:

We urge that the Copyright Office commit to work closely with photography and other visual arts professional associations, and industry leaders from across the image licensing community, to ensure that the documented "best practices" for searching for copyright owners be sufficiently stringent and comprehensive that, while allowing for legitimate searches, they prevent idle or casual searches which would abuse the system.

We also urge a public commitment by stock photography agencies, particularly members of PACA, BAPLA and other industry groups, to ensure that their entire collections at all times be searchable in Copyright Office certified databases.

SAA is part of the Imagery Alliance, an ad hoc group of Visual Artists associations concerned about the protection of copyright. The alliance provides a forum for sharing information and strategy concerning Orphan Works and other legislative issues. There's been a broad range of opinions on the current bills expressed so far, and we can expect more views aired in the days to come.

Orphan Works - Bill

Moving Toward an Orphan Works Bill that Better Protects our Copyrights

Compared to the previous Orphan Works bill, the current version contains several new elements that seek to minimize potential abuse. Specifically, the current bill requires anyone seeking an orphan works exemption to:

1. Document a search according to Best Practices prescribed by the Copyright Office;
2. File a Notice of Use with the Copyright Office; and
3. Agree to, and actually pay, a Reasonable Fee should the author later be found. If not, they will have no recourse to an "orphan works" claim.

These new "hurdles" to obtaining orphan works status for any use should eliminate widespread and easy access to orphans by users, which would surely have occurred with the original version. Even so, the new version continues to put a heavy burden on copyright holders to ensure that they can be found.

The bill provides that the Copyright Office maintain Statements of Best Practices which will define what materials and standards constitute a "reasonable and diligent search." Currently the only way that a potential user can reliably identify an image without attribution is to conduct a visual search for the image using newly available pattern-matching technology AND a comprehensive database of images. The technology exists to do so, and one such technology provider, PicScout spoke before the Congressional sub-committee at the March Hearing giving testimony to explain how it works.

Clearly the power of this advanced visual search technology made an impression on the committee, as the House version of the bill calls for the formation of private searchable databases (a.k.a. image registries) and their certification by the Copyright Office. It stipulates that such databases must contain the author's name and contact info for author, title of work, and copy of the visual work. A list of certified databases would be made available to the public its use would be part of what would be considered a reasonable and diligent search.

For visual works such as photos, the effective date of this law would be delayed until the Copyright Office has certified at least two such databases that are available to the public or by Jan 1, 2013 (whichever comes first).

This bill leans heavily on the creation and maintenance of private searchable databases as the primary mechanisms for linking potential users and copyright owners. However, it makes no firm assurance that private databases will actually be developed or that they will endure. Moreover, the value of such databases is limited, unless they comprise a comprehensive collection of all visual works. Only then will they truly provide a means to identify sought-after copyright owners. There are billions of copyrighted visual works produced in the U.S. every year - from the works of commercial photographers to portrait, wedding, and amateur photographers, plus illustrations, sculptures, painting, textiles, films, animations, clothing patterns, wallpaper, logos, fonts and others.

Any artist who does not register every work with a private searchable database risks their work being used under an "orphan works" exemption. And since there is no constraint on costs that might be involved by a private sector supplier of such services, he bill provides no assurance that copyright holders could afford to participate.

In summary, we see a number of shortcomings with the current provision regarding private searchable databases:

1. If no private databases are developed and certified, the law still goes into effect Jan 2013.
2. It is possible that no such databases would actually by developed and certified; and even if they are, at any time in the future, such services may no longer be in business.
2. There is no stipulation about how these services would work. There is no constraint on costs that might inhibit the participation of copyright holder.
3. The system puts a heavy burden on artists who do not have digitized visual works.

Orphan Works - Issues

Why Visual Works are Vulnerable to being Orphaned

Orphan Works legislation comes at a time when there is already daunting pressure on artists, as copyright holders, to protect their intellectual property due to the digitization and online distribution of their images.

In the digital world, the only reliable way at present to identify the source of a digital image is to examine metadata embedded in the image file. When this is the case, the copyright holder can readily be determined and a prospective user can use the embedded contact information to secure a legitimate license for use of the image.

Adjacent credit lines on a web page are not reliable, since few images are published with accurate copyright attribution and even so, the image can easily be removed from the location where the identifying details can be found.

The problem is that copyright owners have little control over what happens to their image files once they leave their desktop. Once forwarded to stock image distributors and end users, the files are subject to all manner of changes that result in the loss of this critical identifying information.

Absent such identifications, this legislation will surely tempt commercial and editorial users to file for "orphan works" status, even for what is clearly a contemporary image that they sourced online or even from their own archives.

SAA's ongoing work to understand current metadata practices across the image licensing community makes clear that even with the best efforts of artists, it is commonplace that images have no identifying information. Metadata is often inadvertently overwritten and stripped, and images easily copied and redistributed without it, making the problem worse.

SAA is now in the process of conducting an extensive MetaSurvey of stock images, which are represent the most widely copied and distributed images in the marketplace. Our early findings indicate that most have inadequate identifying information embedded in the image files.

This lack of reliable attribution, along with an Internet culture of disregard for the rights of copyright holders, results in rampant Internet infringements of digital images. Because they are prominently featured in online databases, professional stock images are particularly vulnerable to such abuse. SAA, in partnership with PicScout, investigated this issue and reported on it in a recent SAA white paper , Infringements of Stock Images and Lost Revenues.

SAA's Metadata Manifesto also speaks specifically to this problem and urges industry-wide changes in workflow and practices, presenting specific action steps to do so.This document proposes as a strategy the development, promotion and widespread adoption of principles, standards and technology for image metadata use and preservation. The goal is to ensure that all visual works in digital form can be readily identified, with all relevant descriptive data, and their owners located.

This call to action is now more urgent than ever.

Orphan Works - History

A Brief History of Orphan Works

In January 2006, the U.S. Copyright Office presented to Congress their Report on Orphan Works, detailing issues relating to the use of copyrighted works whose owners may be impossible to identify and locate. The concern had been raised primarily by museums and publishers that often held in their collections archival works for which they could not find the copyright holder. Their desire was to be able to publish such works without being subject to undue liability, if they had tried and truly been unable to find the copyright owner.

The Copyright Office report and recommendation to Congress led to the drafting of the Orphan Works Act of 2006. It provided a process for infringers to use “orphan works,” but was so far-reaching and loosely crafted that it would have made millions of legitimately copyrighted works subject to such uses with little recourse for the copyright holder.

A coalition of Visual Artists vigorously opposed the bill and it died in the Judiciary sub-committee later that year. The organized response and objections raised by associations and artists played a significant role in stopping that legislation. It was clear then, however, that the bill would return.

The political realities of today, and strength of the museum and publisher lobbies suggest it is inevitable that some form of Orphan Works legislation will eventually pass. The consequences will affect all artists, worldwide, who are involved in the global business of licensing their copyrighted works. Not only would an Orphan Works law change the nature of the U.S. market, but also will surely set a precedent and pressure for similar laws in other countries. Rumblings of “orphan works” type legislation have been heard in the U.K. as well, following a commissioned study called the Gowers Review of Intellectual Property published in November 2006.

The Orphan Works Act of 2008

After a reprieve of 18 months, Orphan Works is back and, once again, on a fast track. In March, the House Subcommittee on Courts, the Internet and Intellectual Property held Hearings, making clear that the wheels were again in motion, followed a month later by draft legislation from both the House and Senate.

House Bill : H.R. 5889, Orphan Works Act of 2008
Senate Bill : S.2913, Shawn Bentley Orphan Works Act of 2008 

As in 2006, these new bills strive to address the desire of publishers and museum owners, but in doing so, continue with the troubling consequence of legitimizing the use of copyrighted images without permission. It does however have some distinct improvements that suggest that this time, its drafters are attempting to address the issues raised by the creative community.

The concern of the Stock Artists Alliance, then and now, is that “orphan works” legislation must not endanger the copyright protections now guaranteed to artists. Any bill ought to be tightly and narrowly constrained to address only and specifically the issue of making archival works accessible to museums, libraries, educational publishers, and like entities. These are institutions which are already accustomed to paying appropriate licensing fees and which would readily do so if and when they could locate the copyright owner. Any bill which allows or encourages any broader use – particularly with an intent to avoid the proper protection of copyright and paying of licensing fees – runs counter to the original intent of the Copyright Law which is the protection of the economic interests of creators.

From this point of view, it is unfortunate that the proposed legislation includes several elements that invite abuse. As before, there's no distinction made between non-profit users (such as museums) and commercial users (like advertisers and agencies). Any kind of user – from a university archive to a major publisher to an ad agency for a Fortune 500 company – can file for an Orphan Works exemption to use an image. Furthermore, the exemption is not restricted to historical or archival works but could in fact be claimed for any contemporary online imagery, including the most recent editorial or advertising images.

We therefore believe that the permissions granted in the new bills would doubtless increase the potential for increased unauthorized use of images (already a huge problem for our industry) through widespread claims of “orphan works” protection. This adds yet another challenge to artists who are already struggling to protect their copyrights, with the unfortunate result being less recourse for artists against infringers.