Saturday, March 27, 2010

Orphan Works 20 Years Old Or Older

Let’s delve deeper into the Recommendations For The U.S. Intellectual Property Enforcement Coordinator (IPEC), starting with the suggestion that “orphan works” type legislation should only apply to works and digital files that are older than twenty years.

This is not to debate whether “orphan works” should or should not pass. Given the speed at which the Digital Economy Bill is progressing in England and the powerful forces that support the Orphan Works Act in the USA, it can be assumed that some version will pass. (In fact, we specifically created The Copyright Registry at to counter the effects of “orphan works” legislation on creators and their agents. It’s clear from our actions that we believe it will ultimately become law in various countries.)

It would be an amazingly simple, fair and effective compromise if the Digital Economy Bill and similar “orphan works” legislation were amended to cover only creative works and digital files that are more than twenty years old. Here’s why …

The original reason for addressing the “orphan works” issue was to enable “publishers” to use images, illustrations and other content in support of cultural heritage, educational and other worthwhile sharing of the arts for the public good. Because so much of the older creative works have no creator or owner information or owners who can’t be found, copyright laws prevent using this historical content for fear of infringement and possible statutory damages. Arguably, our education and heritage is being compromised by fear of copyright liability.

Somewhere along the way, the forces that make their money from providing the devices and services that access “free” content realized that this was a potential gold mine for them. For the last three decades or so, the standard has been “when it’s created, it’s copyrighted”. In other words, no formal registration or notice is required (i.e., “© 2010 John Doe. All Rights Reserved.”). Upon creation, every creative work is instantly copyrighted.

This is pretty fantastic for creators. It means the artistic scribbling of a 4-year old child at a restaurant is copyrighted upon creation (although she would be too young to commercially exploit that work). It means creators can control who gets to use their creativity and be remunerated to create more.

Since the requirement for copyright notices was removed, fewer and fewer creators have affixed notice to their work. And when the Internet exploded on the scene, copyright notices all but disappeared from images and illustrations online. This is due, in part, to rampant copying without authorization. For every image that is legitimately licensed for web use (say, for a student textbook, news or commercial web site), there are easily dozens of copies that are taken and published elsewhere without permission. So, the few images that do have a copyright notice are outnumbered by those that don’t, and then diminished much further by copies of that work from which copyright notice has been removed through unauthorized copying.

The end result is that the vast majority of images online (and, we’re talking maybe as much as 99% of the images on the Internet) have no information as to who the creator or owner is or no means to find or contact the rights holder.

So, the majority of the professional, commercial and editorial images online would be considered “orphaned”, together with an even larger percentage of amateur images.

“Orphan works” legislation says, in essence, that as long as the user has done a “diligent search” to try to find the owner of a creative work, if they can’t find the owner, they can publish and use that potentially copyrighted content with impunity from copyright infringement and statutory damages (with a few exceptions). The only catch is that if the rights holder happens to discover the use amongst the 1 trillion images online, then a fair usage fee must be negotiated. (At which time the user will argue that a fair fee is $1 because “similar” images can be bought from microstock agencies for that price). The end result of “orphan works” legislation, as recently drafted, could be the elimination of most of the potential revenue to creators for the Internet use of their creative works. (Again, we created to help counter this effect).

Back to the idea of setting a 20-year limit ... Most revenue from image licensing and other creative work happens within the first 20 years of their creation. In fact, with timely images, like news and celebrity photos, most of the revenue happens within the first year from when the image was created. In the sales cycle for most images, their value declines for 20 years until they become “nostalgic”. Then, their value often begins to increase again as they get older.

If there were a 20-year time threshold on “orphan works”, that would provide many benefits to creators, users and society:

1) Historical content with no known owner or agent could be used freely to enrich society (as was originally intended with “orphan works” legislation).

2) Most of the value of modern creativity would remain with its rights holders.

3) It would provide some “breathing room” for creators to begin working with commercial copyright registries and better affixing copyright notice to their works.

4) By establishing that the content AND the digital file must be 20 years old to be eligible as an “orphaned work”, it would totally remove all doubt about a portion that is not “orphaned”. And most importantly, it would enable automated processes to check file creation dates. Search engines, for example, could let users automatically eliminate any file that is not 20 years old. A “diligent search” by a potential user with image or video search engines could immediately eliminate a portion of the works that are clearly not “orphaned”.

From the wedding photographer who posts “proofs” of their clients online for review, to the commercial stock photographer whose images are widely licensed and even more widely stolen, the 20-year rule would significantly protect all creators and, to some degree, Content Consumers also. And, it would protect amateur photographers who don’t have a clue what this discussion is about.

Therefore, it is recommended that creative trade associations, the U.S. Intellectual Property Enforcement Coordinator (IPEC), the U.S. Copyright Office, and legislators of the Digital Economy Bill and the Orphan Works Act consider limiting the definition of an “Orphaned Work” or “Orphan Works” to be a creative work that is at least 20 years old, and a digital file that is at least 20 years old if that creative work is in digital form.

Randy Taylor
The Copyright Registry at

Thursday, March 25, 2010

Recommendations For IPEC-U.S. Intellectual Property Enforcement Coordinator

The U.S. Intellectual Property Enforcement Coordinator, Ms. Espinel, made an open call for comments from industry stakeholders. Many submitted their suggestions. Hopefully, you did too. Here are mine.

My "Evaluative Report And Recommendations For The Application Of Copyright Laws, Technology And Public Policies By The Office Of The United States Intellectual Property Enforcement Coordinator" weighs in at 52 pages. (Thank goodness we had so little time to do it!) It contains a detailed review of technologies that can serve the objectives of copyright use, education and enforcement. And, it contains recommendations of desirable actions for the photography and illustration industry.

The full report can be read here:
Report And Recommendations For The U.S. Intellectual Property Enforcement Coordinator By Randy Taylor

To summarize, my recommendations to IPEC are as follows:

a. Seek international consensus via treaties and conventions

b. Foster creation and sustenance of Registries

c. Initiate a minimum statutory damage or fine for failure to obey a DMCA Take Down order, separate from copyright statutory damages

d. Foster numbering systems because a unique file ID or number is required for each digital content file for the orderly conducting of business and processes

e. Expand copyright notice methods to include machine readable methods as acceptable alternative means of notification

f. Define "Orphan Works" as being limited to works and digital files that are older than 20 years

g. Initiate a worldwide cap on the duration of copyright

h. Initiate a compulsory license for low-end web use of photographic images (uses valued at under $1)

i. Prohibit using “fair use” as an exception when the content usage is for gainful intent

j. Discourage advertising that encourages infringement

k. Assign to a scientific standards body the task to monitor and recommend “best practices” haching methods and formulas

Randy Taylor
The Copyright Registry at

Wednesday, March 3, 2010

Unregistered Images In Class Actions Are OK Says Supreme Court

Images that have not been registered with the U.S. Copyright Office can be included in class action law suits that involve copyright. That’s what the U.S. Supreme Court indirectly ruled in a unanimous (8-0) vote.

Though the original case was about the rights of writers, this outcome is good for photographers and other image rights holders. It means that owners of photographs that haven’t been registered can still benefit from class actions, which are becoming the best option to get paid from large web sites and companies that monetize contributory infringements of millions or, in some instances, billions of infringing images.

The details are even more complicated. In 2001’s New York Times Co. v. Tasini, the court decided that using the author’s stories in online databases without written authorization was an infringement. Three years later, there was a mediated settlement for $18 million. But, some authors objected. The District Court overruled the objection. Those who objected appealed. But this time the court said it didn’t have jurisdiction because some of the creative works were never registered with the U.S. Copyright Office. Later, the Court of Appeals agreed. Ironically, both the owners and publishers were objecting to the court saying it didn’t have jurisdiction. On March 2, 2010, the U.S. Supreme Court settled the matter once and for all, saying the lower court did, in fact, have jurisdiction, even if the copyrighted content was never registered.

Wow. Complicated. And, the reason for the Supreme Court’s reversal is even further removed from images and copyright issues.

But at the end of the day, the lower court inadvertently forced this Supreme Court decision that was needed to definitively clarify that unregistered content can be included in class action law suits. The lower court did this by going against what both the rights holders and infringers had agreed to in their settlement.

Had the decision gone the other way, only a fraction of images could be included in future actions. And then, they would need to be assembled in a way that separates registered images from unregistered ones. That would have made class actions involving photographs much more difficult to execute with an acceptable outcome.

Randy Taylor
The Copyright Registry at