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I was surprised (and frankly a bit dismayed) to see that there isn't already more of a discussion of this subject underway around here. There are currently bills in the House and the Senate that aim to amend the US Copyright law to allow use of works where the copyright holder can't be identified (so called "orphan works"). While that's an admirable goal, in principle, the way they've chosen to address the problem presents a whole slew of new problems.
Basically, what these bills do is remove almost all legal consequences for copyright infringement, as long as the infringer can prove that he or she "(i) performed and documented a qualifying search, in good faith for the owner of the infringed copyright; and (ii) was unable to locate the owner of the infringed copyright."
The bill's Requirements for Searches are somewhat dubious, referring as they do to Register of Copyright Best Practices that don't exist, a database of Pictorial, Graphic and Sculptural Works that also doesn't exist, and sets an outside date of January 1, 2013 for the law to go into effect, whether all the bugs have been ironed out or not. But here are the two biggest issues, as far as I can see:
1) Entry into the database requires registration with the Copyright Office, which currently costs $45. In the past year, I have taken almost 4000 photographs. Even if my hazy recollection that I can register up to 10 images on a single form is true, that means that I would have to spend $18,000 to protect my work. Either that or never, EVER let it see the light of day. Even assuming that a competing service will fill the same need for as little as $1 an image, you can see that it quickly becomes cost prohibitive.
2) The bills remove all penalties for copyright infringement except for the requirement to pay "reasonable compensation to the...owner." Now, anyone who has ever gotten into a copyright dispute can tell you that the notion of "reasonable compensation" is a really slippery concept. There's just no good way to prove the value of a work of art by someone who isn't already hugely famous or successful. Never mind the fact that there are all kinds of trade group pricing guides and such – they just don't hold up in court. The only real deterrent, such as it is, is the threat of statutory damages and having to pay legal fees. Once those are removed, copyright law becomes nothing but a toothless old lion – noisy, but harmless.
There are various trade groups on all sides of the issue. The American Society of Media Photographers, who fought like hell against similar legislation in 2006, seems to have given up. Their web page on the subject basically says "this is the best we're going to get, so we might as well take it." On the other hand, the National Press Photographers Association has said that can't support the legislation and the National Writers Union has agreed.
You can get the full text, history and current status of the House version (H.R. 5889) here. The Senate version (S. 2913, or the Shawn Bentley* Orphan Works Act of 2008) is here. And for those who want to see what the current copyright laws look like, you can find the entirety of U.S. Title 17 here.
*Shawn Bentley was a former Senate Majority Chief Counsel for Intellectual Property who left in 2003 for a job as Vice President of Intellectual Property and Global Public Policy for Time-Warner.
Basically, what these bills do is remove almost all legal consequences for copyright infringement, as long as the infringer can prove that he or she "(i) performed and documented a qualifying search, in good faith for the owner of the infringed copyright; and (ii) was unable to locate the owner of the infringed copyright."
The bill's Requirements for Searches are somewhat dubious, referring as they do to Register of Copyright Best Practices that don't exist, a database of Pictorial, Graphic and Sculptural Works that also doesn't exist, and sets an outside date of January 1, 2013 for the law to go into effect, whether all the bugs have been ironed out or not. But here are the two biggest issues, as far as I can see:
1) Entry into the database requires registration with the Copyright Office, which currently costs $45. In the past year, I have taken almost 4000 photographs. Even if my hazy recollection that I can register up to 10 images on a single form is true, that means that I would have to spend $18,000 to protect my work. Either that or never, EVER let it see the light of day. Even assuming that a competing service will fill the same need for as little as $1 an image, you can see that it quickly becomes cost prohibitive.
2) The bills remove all penalties for copyright infringement except for the requirement to pay "reasonable compensation to the...owner." Now, anyone who has ever gotten into a copyright dispute can tell you that the notion of "reasonable compensation" is a really slippery concept. There's just no good way to prove the value of a work of art by someone who isn't already hugely famous or successful. Never mind the fact that there are all kinds of trade group pricing guides and such – they just don't hold up in court. The only real deterrent, such as it is, is the threat of statutory damages and having to pay legal fees. Once those are removed, copyright law becomes nothing but a toothless old lion – noisy, but harmless.
There are various trade groups on all sides of the issue. The American Society of Media Photographers, who fought like hell against similar legislation in 2006, seems to have given up. Their web page on the subject basically says "this is the best we're going to get, so we might as well take it." On the other hand, the National Press Photographers Association has said that can't support the legislation and the National Writers Union has agreed.
You can get the full text, history and current status of the House version (H.R. 5889) here. The Senate version (S. 2913, or the Shawn Bentley* Orphan Works Act of 2008) is here. And for those who want to see what the current copyright laws look like, you can find the entirety of U.S. Title 17 here.
*Shawn Bentley was a former Senate Majority Chief Counsel for Intellectual Property who left in 2003 for a job as Vice President of Intellectual Property and Global Public Policy for Time-Warner.
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