Orphaned Works and Premature Activism
In the last few days, the Net has lit up with alarm about a bill pending before Congress that would effectively remove copyright infringement penalties for any artwork not specifically registered with a paid service. Art communities are justifiably concerned by the prospect. Journals, blogs and emails are flying the banner "Legalized Theft!" passing the message on like a grass fire. All the power of the outraged communities is being brought to bear for the crusade.

Problem is, no such bill exists. Yet.



The rumor arose from an article by Mark Simon on Animation World Network, which claims that all unregistered copyrights are under immediate threat:
You Will Lose All The Rights To Your Own Art
"If the Orphan Works legislation passes, you and I and all creatives will lose virtually all the rights to not only our future work but to everything we've created over the past 34 years, unless we register it with the new, untested and privately run (by the friends and cronies of the U.S. government) registries. Even then, there is no guarantee that someone wishing to steal your personal creations won't successfully call your work an orphan work, and then legally use it for free."

He's expanding on concerns raised by the Illustrators' Partnership of America, whose own news release of March 19 asks its readers only to be alert and stand by:
Orphan Works Update
"Many artists have contacted us, asking if it’s time to write Congress about the new Orphan Works bill. No, Congress hasn’t released an actual bill yet and lawmakers tend to ignore letters when there is no bill.

But when we do ask you to act, it will have to be quickly. We expect a bill to be released after the Easter recess. Sources say it will be introduced in the House and Senate simultaneously, and fast-tracked for a vote in the House by mid-May. Advocates hope for swift passage before the summer recess."

The IPA is responding to a presentation made to the House IP subcommittee by a company called Pic Scout. Pic Scout has created image recognition technology that can automate scanning for infringing works, and presented its newest product, the Content Clearance System, as a solution to the problem of orphaned works. Anyone wishing to use an image would upload it to be compared against Pic Scout's database, then receive back the image owner's contact information if it exists.
Pic Scout statement, 13March08
"This system targets the simple person who wants to use any digital file, and doesn't know who it belongs to. All he has to do is go online, upload this file to our clearance system, using our friendly interface, and click on a search button. Our system will compare this file to millions of other files, already stored in our secured database, and the user will receive an email notification with copyright owner detailed contact and licensing information. While performing this reasonable and diligent search at a little or no cost at all, the users will have the ability to decide whether they can and want to use the content."

While I'm sure Pic Scout would be overjoyed to have every artist in the States forced to pay a fee to get into their safe, gated database, it's a long road between here and there. For one thing, the Copyright Office has already considered requiring registration and rejected it as too extreme. Register of Copyrights, 13Mar08
"In our study of the orphan works problem, the Office reviewed various suggestions from the copyright community. These included creating a new exception in Title 17, creating a government-managed compulsory license, and instituting a ceiling on available damages. We rejected all of these proposals in part for the same reasons: we did not wish to unduly prejudice the legitimate rights of a copyright owner by depriving him of the ability to assert infringement or hinder his ability to collect an award that reflects the true value of his work."

For another, image comparison is just one potential tool in making a reasonable search for an owner. Art communities, websites, professional organizations and such already do a pretty good job of searching out infringement without any such technological aids. And new tools come along all the time, such as Google's Image Labeler currently in beta.
Image Labeler

Finally, current copyright law already stipulates that when the owner of an 'orphaned work' resurfaces, that work is no longer considered orphaned. The owner can still claim compensation for the image's use. Reasonable effort to search for the owner, and formal registration of a work, only come into play for statutory damages. If someone claims your work is orphaned, and you show up and say 'Hey that's mine', you have rights. It's that simple.

Current copyright law could indeed be in flux; it's been pounded from all sides by entertainment giants extending their terms, recording companies attacking fair use, and software producers claiming everything they make is only licensed and never sold. Any proposed legislation that appears in the next few weeks needs to be scrunitized. We have every reason to carefully watch the proceedings and keep ourselves informed of the laws. And then, when a real threat arises, to recognize and act on it as swiftly as we did these past days.

If nothing else, perhaps this scare reminds us how much we value our own creations and those of our fellow artists. The first step to believing something is the fear that it might be true*.


*(to paraphrase Terry Goodkind.)

Further reading:
Radio Free Meredith's excellent analysis on orphaned works:
Six Misconceptions About Orphaned Works"

Statement by Marybeth Peters, Register of Copyrights, before the House on 13 March 2008:
The "Orphan Works" Problem and Proposed Legislation"