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.
