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.
