« Statistics, Damned Statistics, and the 'Visio Populi' | Main | Check It Out! »

Thursday, 08 April 2010


It's impossible to know how the various orphan works provisions would play out, but I do see the possibility of people using it to cover theft.

How it would play out in practice would depend on how the courts dealt with defenses; if the company couldn't point to where they got the copy without metadata, the court might presume they actually got one of the copies with metadata and stripped it themselves, and apply large penalties; in which case there wouldn't be that much theft going on.

I do also know, though, that in Science Fiction publishing, the hardest part of assembling an anthology of important stories is often tracking down the people who own the rights (especially when the author is dead). At least in that field, orphan works are a serious problem that interfere with keeping works in print where customers can buy them. Some brave editors escrow the standard rate for the anthology for the rights holder when they come forward, but there's no legal cover for this, and in theory they could be sued for lots of money.

(Obviously the way photos are used is generally very different from the way fiction is used, so the problems will likely be different as well. The most vehement opponents of the orphan works provisions for photos may be completely right.)

I presume that most professional and semi-professional photographers will be pleased with this ruling. As a counterpoint, however, I understand that it has become best practice amongst professionals, paparazzi aside, when taking pictures of architecture, of people, or of anything that strikes the photographer as beautiful or in any way a good subject for a photograph to negotiate either compensation or, at least, detailed attribution.

This ruling, if it is extended as a moral argument, seems to say fairly clearly that it is not a defense for not giving compensation or detailed attribution to say that it is a lot of trouble to find out who is responsible for the work in the real world that made the photograph work. It should not be taken that objects or people can be "orphans" any more than can photographs. It should be assumed that objects or people do not give permission for photographs to be taken unless it is explicitly given, just as we now have to suppose for a photograph. A photographer may argue that their composition is an artistic contribution that gives extraordinary license and rights of control once they have "taken" a copy of an object, but the composer of a web-site might equally make a claim of artistry after using a copy of a photograph as part of an overall design, which, however, this ruling establishes they may not do.

In any case, I suggest that a photographer does not have a moral right to their images, only to their composition of their images. To claim control of an image, agreement and compensation of everyone who contributed to the image, even in the smallest identifiable way, should be established in writing.

In other words, this precedent may not be in the best interests of photographers.

Short Google. They blew off China too.

The trouble is everything *else* the DEB has brought, most notably potential for internet disconnection for repeated copyright violations, and the lack of common-carrier defence (ie liability for your own wifi).

What really peeved me off is the disparity:
.mp3: oh no, Sony/EMI/big_money_corp will be annoyed, they need to be able to instigate multi-thousand-pound cases to recover their 79p losses
.jpg: bah, there's no money in that. Nobody'll notice if we change the default copyright statement to CC-by-a, will they?

Good thing clause 43 didn't pass.

Good, two of my favourite sites, TOP and El Reg, finally noticed each other. Now if only TOP started editing (as in "completely rewriting") El Reg's appalling camera reviews, I'd be in heaven.

Mr. Ramos:

Archiving is not a solid argument for orphan works protection, at least under US law. If you have a work which is in danger of degeneration and you want to scan it, you are almost certainly covered by the Fair Use defense. You can make a backup copy if the work is in danger of degeneration in most cases. Heck, you can make a backup copy just to have a backup copy in most cases.

What you can't do, and what I kinda sorta maybe get the feeling you are trying to defend, is say, "Hey, well I had to scan it to archive a backup in case the original work falls apart... since I had to do that anyway, I think I'll put it on the website so everybody can access it." It is not in any way relevant to archival or backup status that you have to put the backup in circulation more than the original could be.

I would take a Fair Use case in a heartbeat where an archivist or librarian took some aging work, scanned it, put it on a workstation, and gave access to the workstation in much the same way that they gave access to the original work before it became too fragile to allow general access to it. This would include non-general access for remote redundant backup. I'd still take the case, no problem.

Put it on the network for general access, or the Internet, and that's completely above and beyond archival or backup usage. If you disagree, and your concern is mere backup, it's much easier and safer to write a new section that just says, "Reasonable backups with non-general access are presumed to be a Fair Use unless proven otherwise" than to add Orphan Works protection from copyright infringement on the basis of archival necessity.

Some people here doesn't seem to be able to imagine that an orphan work can come to be through innocuous means.

There's a photograph on the wall beside my desk, printed on glossy paper. It looks like a contact print from roll of 120 film, maybe 4.5x6 cm. In it, three women lean against one another, smiling, bundled up against cold. The hats suggest that the photo dates to the 1920s. A horsedrawn farm wagon in the back tells me it's a rural part of the world - big sky, deciduous trees.

I have no idea where this photo came from. I think it's unlikely that anyone ever will. I have not removed metadata. I bought the image from a junk seller. At some point, this image's creator may have been identifiable, although sorting out precisely who inherited the rights to it would have been more difficult. As it stands, establishing the image's origins are impossible.

That's fine for this one image. Yet these kinds of resources form the very basis for some kinds of work, including social history. On the other side of my desk, I have a 1960s text on the physical development of Chicago. A good portion of the illustrations and photographs are attributed to "unknown."

A non-profit exemption doesn't help the historian who's writing the book, or the publisher producing the book. Are we willing to say that an historian can't publish an except of a letter because it's impossible to trace ownership?

It seems to me that the two sides on orphan works spend a lot of time talking past one another. I'm a professional designer, so a good portion of my livelihood depends on strong IP protections; on the other hand, my heart's in landscape history, and much of my personal artistic practice involves repurposing old imagery, so I think that I've got a strong allegiance to the liberalized-IP crowd.

The recent UK orphan works measure was flawed, that I'll grant. We do need reform. Publishers are growing increasingly afraid of copyright litigation, especially with the vast expansions of copyright terms, and the problem of throwing out sources and evidence because of the possibility of infringement is growing worse.

@MarcW - you might defend the archivist, but the problem is that the real archivists don't want to get sued. (Incidentally, library backup copies are not fair use - that right comes directly from the Copyright Act, at least in the US.)

Dear MarcW & Peter,

I think you are both talking about a world-as-you-imagine-it-to-be rather than the world-that-is.

MarcW, you may think it's a legal slam dunk, but a vast array of librarians, archivists and historians would disagree. I know quite a few, and this is a HUGE problem for them that inhibits both the preservation and dissemination of immense amounts of historical material and information. Absent a definitive high court ruling ala Reid vs CCNV or new law that protects them, they're seriously screwed by the orphan works problem. We all suffer because of this. It is a really bad problem. Maybe it shouldn't be, but "is" trumps "should."

Peter, the Berne Convention and all compliant copyright law (essentially all First World law) is clear and straightforward on these matters. You create a work, you are automatically invested with an enforceable copyright on it. The automatic and enforceable parts are hugely important.

BUT... that copyright in no way infringes or overrides others' rights. Those rights frequently restrict a creator's options. For example, in the US you are generally enjoined from using a photograph for commercial purposes if it contains a recognizable likeness of someone. The subject has the right to control the commercial use of their image; your photo copyright doesn't override that. (Note: 'commercial' means to promote commerce-- selling a photo doesn't make it 'commercial;' using it to sell something does.) Existing copyright law does not abrogate any subject rights, and it only protects your 'composition' (using the term broadly) -- the issue you imagine doesn't exist.

pax / Ctein

Dear DDB,

I see this as playing out very badly, because there is already widespread piracy of photographs online. The piracy is of such trivial nature-- uncredited compilation and 'best of/appreciation' pages, minor eye candy on largely noncommercial sites -- that it's ignorable right now. Quite a few of my photographs appear in places I never authorized, with no credit line nor link back. Meh- there's unjust enrichment of a minimal nature, but no material loss to me. I don't terribly care.

The moment you pass an Orphan Works law of the sort currently in Congress, every one of those 'appreciation' web sites and misuses becomes a pirates' cove. You see a photo there you like and want to use. You make a 'good faith' effort to trace down the source. Such a trace will fail. We don't have robust and complete search engines(yeah, I know about tineye; no, it isn't) for images and won't for at least a decade. When the trace fails, you're home free. The creator's copyright (the right to determine who copies the work and under what conditions) is hosed.

The real pisser is that those compilation sites look for the best and most interesting photographs in their arena of interest to post. That only makes sense. So, the photographs most likely to be valuable to their creators are at highest risk of being replicated and from there pirated.

Anyone who imagines there won't be a lot of cheapskates who will instantly avail themselves of this virtually-free virtual stock agency is living in a fantasy world (and didn't read Mike's previous articles on TIME magazine covers).

The orphan works problem is extremely serious. The legal solutions proposed so far are disastrous to photographers. The problem needs a good law to fix it; these proposals are for very bad laws.

pax / Ctein

I'd think amending the orphan works provision with a "sunrise clause" stating that it does not apply to works less than say 14 years old (the original copyright term) would fix most of the commercial issues. Oh, and threefold usage fees in case the copyright holder is found after publication.

I'm kinda with Tim here about Clause 43. Judging by the attendance, it was all arranged in advance. I don't remember whether it was the same site, but there was a page showing that only 10 MP's participated in the debate about the DE bill. And then 187 voted for, and 47 voted against. The rest, 412 of them - 64%, didn't show up at all. Nice statistics and ratio, innit?

I would be worried in spite of the dropped clause. Actually, I am worried although I am not in Britain.

On the brighter side of life (really? :-/), the Minister for Digital Britain supposedly doesn't know what "IP address" stands for.

Well, a first step is for those places that make illegal-but-currently-harmless compilations to NOT STRIP THE METADATA. That requires a conscious action on their part. Then rights owners can complain about the ones that continue to strip metadata and shut them down. We can make it the new social standard for the web -- using a photo without metadata showing origin can become an unacceptable practice.

No idea if that can work, or if it would really help enough.

I frequently find things tineye hasn't indexed, it's definitely not the complete answer (and a single proprietary product can't be the complete answer anyway). I do hope things continue to improve in that area, though, tineye does quite well with the things it has gotten indexed.

Like you, I see serious problems on both sides; photos and history become unusable by being orphaned, and photos get stolen and people lose money they deserve. I understand why people who make their living from their photos focus on that side of the issue; I tend to focus on the long-term historical side because I often favor the long-term over the short-term, and because people fighting on the side of their own commercial interests are already fighting on that side quite effectively.

pax / Ctein:

The problem is, as is so often the case with a question of Fair Use, that Fair Use is a question of fact. Unless your case is on all fours with some prior case, you're right, you might very well get sued and have to deal with that. A lawsuit you know you're going to win is still, well, a lawsuit. And lawsuits are A Serious Pain.

So I admit that my near-certainty that an archivist would win in all or most of these cases isn't as helpful in the real world as it might be.

But, as I said, the solution is simple: just add a paragraph to the statute's Fair Use section that specifically says, "Archival duplication for preservation purposes is a Fair Use unless proved otherwise. Reasonable access to archival duplicates intended to preserve original works in danger of degradation, or to archival copies when original works are lost or destroyed, is a Fair Use unless proved otherwise." I'd even go so far as to lump successful defense based on archival fair use into the class of cases where a successful defender should get costs and fees. This is all basic and straightforward and has nothing whatsoever to do with orphan works principles. Even if the work ISN'T an orphan, I think that this sort of rule would be good. I wouldn't qualify it to only apply to orphan works.

Your use of "dissemination" gets into the other thing I was talking about. While as a member of society I understand the importance of being able to disseminate artistic works, I repeat my earlier assertion that the fact that you want to make something broadly available for people to access because you think it's historically relevant is not an excuse to weaken the copyright on it. That to me is right square within the current understanding of Fair Use law, and if you replicate copyrighted works for general distribution, facilitating their usage by potential infringers, you do so at your peril and that is how it should be. We may have to agree to disagree on that one.


Dear MarcW,

No, I think we're almost entirely in accord. I agree this is a problem that can be resolved legally. Just that the existing OWA proposals haven't done that.

I am not at all interested in weakening copyrights (although the term is now unreasonably long, but that's a different issue). When I talk about dissemination, I'm talking in the historical context and I'm talking about genuine orphaned works, not "well I can't find the owner easily so it must be orphaned" works.


Dear DDB,

Recent conversation with one of the archivists I know demonstrated that the 'commercial' interests aren't doing all that great a job of communication. The listserv she was on that was discussing this was entirely unaware that this was a huge bad thing for photographers. She asked me to write up a short piece for them outlining the problem (which I did).


Dear Olivier,

I may be too sensitive to the precise wording but I take issue with "...instead of trying to deal with the consequences of a problem (i.e. how can you use orphan works?) I believe, and I know a lot of photographers do so too, that the government should deal with the causes of the problem..."

I'm fine with it if you change "instead of" to "along with" but these are two different problems, and fixing the orphan problem for all time in the future would in no way address the very large problem that existing work presents.

pax / Ctein

The comments to this entry are closed.