Follow-up Article to "Orphan Act"

Crafts of Texture

As Artists Are We Protecting Ourselves? Are We Open to Loop Holes in the Proposed 'Orphan Works' Act?
Posted: 25 Apr 2008 04:29 AM CDT
Yesterday I received an email from a regular Guest writer here on Crafts of Texture, Pamela Baker of MagdaleneJewels.etsy.com about a new bill entitled 'Orphan Works' going through congress at the moment in the US. I published it today at http://sarastexturecrafts.blogspot.com/2008/04/new-copyright-issues-for-all-us.html Admittedly at first I had no idea what 'Orphan Works' was, although I watch the news here in the UK this was an unfamiliar topic to me... maybe in the madness of the last few months I had missed it?? So I decided to delve a bit deeper and see what I could find out, especially if it was to become a global issue.I urge you to read on and decide for yourself, our rights to a copyright on web images and the products therein could be infringed.Is this bill a concern for the general artist, photographer and crafter? In the immediate future, for the US, yes... for the rest of the world... a cause for debate, yes... a topic to follow, yes as laws are being considered in Europe already.What is/are 'Orphan Works'? Wikipedia tells us;
An orphan work is a copyrighted work where it is difficult or impossible to contact the copyright holder. This situation can arise for many reasons. The author could have never been publicly known because the work was published anonymously or the work may have never been traditionally published at all. The identity of the author could have been once known but the information lost over time. Even if the author is known, it may not be possible to determine who inherited the copyright and presently owns it.
Nearly any work where a reasonable effort to locate the current copyright ownerfails can be considered orphaned. However the designation is often used loosely and in some jurisdictions there is no legal definition at all.
Compulsory license schemes, which would exclude orphaned works from copyright protections, are rarely acceptable under international copyright treaties. Such schemes are only worthy of consideration when there are more significant concerns than orphan works, such as a risk of market failure due to very high costs in places like the satellite retransmission market.[1]
Canada has created a supplemental licensing scheme that allows licenses for the use of published works to be issued by the Copyright Board of Canada on behalf of unlocatable copyright owners, after a prospective licensor has made "reasonable efforts to locate the owner of the copyright".[2] As of September 2006 the Board had issued 189 such licenses.[3]
US - The Public Domain Enhancement Act was introduced as House Bill 2601 for the United States 108th Congress in 2003 but never passed. It was reintroduced as House Bill 2408 for the 109th Congress in 2005 but died again. The bill would have released certain orphan works into the public domain if the copyright renewal registrations were not made as required.
In January 2006, the United States Copyright Office released a report on orphan works after researching the issue. The situation in the US is a result of the omnibus revision to the Copyright Act in 1976. Specifically, the 1976 Act made obtaining and maintaining copyright protection substantially easier than the 1909 Act. Copyrighted works are now protected the moment they are fixed in a tangible medium of expression, and do not need to be registered with the Copyright Office. Also, the 1976 Act changed the basic term of copyright from a term of fixed years from publication to a term of life of the author plus 50 (now 70) years. In so doing, the requirement that a copyright owner file a renewal registration in the 28th year of the term of copyright was essentially eliminated.
These changes were important steps toward the United States’ accession to the Berne Convention, which prohibits formalities like registration and renewal as a condition on the enjoyment and exercise of copyright. Moreover, there was substantial evidence presented during consideration of the 1976 Act that the formalities such as renewal and notice, when combined with drastic penalties like forfeiture of copyright, served as a “trap for the unwary” and caused the loss of many valuable copyrights. These changes, however, exacerbate the orphan works issue, in that a user generally must assume that a work he wishes to use is subject to copyright protection, and often cannot confirm whether a work has fallen into the public domain by consulting the renewal registration records of the Copyright Office.The report recommended that the focus on developing legislative text to address orphan works should not obscure the fact that the Copyright Act and the market place for copyrighted works provide several alternatives to a user who is frustrated by the orphan works situation. Indeed, assessing whether the situations described to use in the comments were true “orphan works” situations was difficult, in part because there is often more than meets the eye in a circumstance presented as an “orphan works” problem. In most cases a user may have a real choice among several alternatives that allow her to go forward with her project: making noninfringing use of the work, such as by copying only elements not covered by copyright; making fair use; seeking a substitute work for which she has permission to use; or a combination of these alternatives. Even though some orphan works situations may be addressed by existing copyright law as described above, many are not.
In conclusion, the Copyright office has reccomended new legislation which sets out limitations on the remedies that would be available if the user proves that he conducted a reasonably diligent search and describes a threshold requirements of a reasonably diligent search.[4] Such a solution would fall short releasing orphan works into the public domain, like the previous bill, but rather encourage perspective licensors to go ahead with an infringing project knowing in advance the maxium remedy he could be faced with.
In May 2006, U.S. Representative Lamar Smith introduced H.R.5439, a bill aimed at addressing the issue of orphan works by providing limitations of remedies in cases in which the copyright holder cannot be located.[5]
Europe - The European Commission, the civil branch of the European Union, is currently looking into the orphan works problem.[6]
So what does this mean for us... artists, photographers and crafters who blog, submit pictures to forums and social networks in order to market our products, network or just share? Well, it means that if someone stumbles across an image of yours and they can't find the owner (i.e. you), then they may have the right to claim the image and some might suggest possibly even go further (and we know there are some out there who will) to suggest that the work within the image is their own.
So who would claim these pictures? It could be anybody, but I should imagine (an assumption) that where money is involved in the process of each claim, that we would really be talking about larger companies... maybe those who hold stock images for marketing and advertising companies, or companies who stumble across your invention and understand how to make it profitable on a larger scale??? (again an assumption).
Can unapproved use of my images/product happen already, without someone going through the process of claiming an 'Orphan Work'? Sure, who is out there policing the internet... do you know if Facebook, MySpace, or Flickr use your images for promotional material already? Do you know that images from your blogs can be downloaded and printed off? Yet we all upload images and products freely. How do we stop it? Well this is the debate, isn't it? Even if the bill is opposed and rejected in congress, will copyright infringement ever stop? Coming from a fashion background where I have seen my own work rehashed by other companies for their profit... I'd tend to say these things are here to stay... doesn't stop it hurting when it does happen though!
So are we doing enough to protect ourselves? No probably not... What else can I do? Here are some things to consider, for example;
Are you a business, a professional, or a serious creator with an invention? Should you be taking protection of your work more seriously?
Do you copyright your work already? Every single piece? Are you familiar with how copyright works in your country?
Do you archive your work and images? Laborious, but maybe not a bad idea?
Do you copyright/watermark images of your work... every single one of them? Even the pictures of you and your friends crafting away on a Saturday afternoon? If I come across an image you have taken and submitted on the internet... how will I know it came from you? Have you looked yourself up under 'google images'?
If someone else blogs about you, do they provide full links to your websites and or email, so that you can be contacted? Do you do the same for the people you feature?
If you have comments on the topic, or links to information sites I have missed... please post them here.
If you want to follow the progress of 'Orphan Works' and the pending US bill, here are some other site I have found -
http://orphanworks.blogspot.com/
http://www.orphanworks.net/?gclid=CI3l8OPk9ZICFQpuMAodLl2qBQ
http://www.bsac.uk.com/reports/orphanworkspaper.pdf
http://www.mileproject.eu/orphanworks
http://www.cilip.org.uk/NR/rdonlyres/E6F612ED-6CE1-4723-8348-CB7162D983C2/0/LACAorphanworksstatementFINAL19dec07.pdf
http://foresthouse.livejournal.com/457847.html

New Copyright Issues for all US Crafters, a Guest Writer Article by Pamela Baker
Posted: 25 Apr 2008 02:38 AM CDT
THE ORPHAN WORKS ACT: