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creative works have no creator or owner information or owners who can’t be found, copyright laws prevent using this historical content for fear of infringement and possible statutory damages.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

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