The Orphaned Works Act and You

There has been some hubbub going around recently about the new orphaned works act -

H.R.5889 - S. 2913

The first information I received on this was an email warning everyone to beware of this bill. It discussed how we'd have to register everything we created with a commercial copyright office and we'd lose all are rights if we didn't. This does not appear to be the case.

The reason to enact this legislation is that there are lots of works that are not attached to information about who created them. Many libraries and archives are full of orphaned works. Copyright law keeps getting extended so that it takes longer and longer for works to become part of the public domain. Because many of these works aren't linked to a creator they can't be used until they are so old they are useless or destroyed by time. The purpose of copyright law is to foster creativity and innovation by protecting the rights of the creator, but still allow innovation and use when the copyright runs out. The idea of orphaned works is to allow the use of works if nobody is taking credit for them.

Sharing of information is an increasingly important part of our society and helps things to go forward and progress. If works can not be shared because their creators can't be found this can greatly stifle innovation. It's in our best interest to allow the sharing of content whenever possible, and also to protect the rights of the artists and content creators to benefit from their creations. The important thing here as with so many things is balance.

It seems that the best thing to do with this legislation is to support it as long as it does protect artists and creators that are taking credit for their work. The Special Libraries Association is supporting the bill as long as the "dark archive" portion is removed. Incidentally the "dark archive" portion is the part, in the house bill only, that requires someone who wants to use an orphaned work to file with the copyright office before using it. This is meant to protect artists and would keep a record at the copyright office of use of the work. Library groups don't think it would actually help the content creators though and would increase the cost of compliance substantially. It appears that this point is where the real debate should be.

The basic premise of this bill is that before using a work attempts must be made to find the copyright holders and get their permission. If after a “reasonably diligent” search that information can't be found then it can be considered an orphaned work and may be used. If you create content and can be found then work can't be used without your permission.

Things that content creators can do to protect their works:
tag works with your information - include your name or other contact information in the EXIF or ID3 data of files that are made available.
put credits on works - especially with videos
watermark images - Digimarc is an invisible solution that offers some protection
keep your contact information up to date - on your website
if possible register your works with the copyright office.
- http://www.copyright.gov/register/


The above suggestions are from Jonathan Bailey's blog, which has a great discussion of this issue.

Here's my post about how to watermark and tag photos: How to tag photos with your copyright information

Even without this legislation many copyright holders have had works used without their permission and have had difficulty getting payment for use through the courts. Registration with the copyright office can make this much easier - but is not totally required like some emails and comments on this bill would lead you to believe. The bill provides for "fair" compensation should you find out your works are being used without your permission. After you get your fair compensation you are entitled to charge whatever you wish for future use as you still own your work and now users know who you are. Claims that you will lose ownership without registration are unfounded.

I think we do need some legislation to allow sharing of works while they are still of some use. I think it's somewhat like the open source movement, but instead of people creating content for all to use from the start it takes works that are neglected and makes them useful again. Instead of being afraid of sharing we should see how we can use it most effectively.

Some links to related articles:
audio commentary and interview that says creators will lose all their rights - http://www.youtube.com/watch?v=CqBZd0cP5Yc - from theweeklynews
http://uflib-copyright.blogspot.com/ - another discussion about supporting the bill
http://www.popphoto.com/popularphotographyfeatures/5001/grand-theft-photo.html - This doesn't mention current legislation changes in this bill but does mention how works are being stolen and used as orphaned works now - it encourages copyright registration
http://www.opencongress.org/bill/110-h5889/show - more discussion of this bill in legal terms
Jonathan Bailey's blog - discussed above
http://creativecommons.org/ - Creative Commons gives you much more options for protecting and sharing your work, although I'm not sure about enforcement
http://www.copyright.cornell.edu/public_domain/ The current term limits on copyright and when things becomg public domain
http://tineye.com/login software that claims to be able to search for images, especially on flickr, even if it has been cropped or altered. I will attempt to use this service and comment on it if I get the beta invite.
http://photobusinessforum.blogspot.com/2008/06/orphan-works-unique-set-of-myths-and.html
- a good examinations of the "myths" of the bills - although it doesn't consider the main purpose of the bills