Orphan Works and copyright: should you be worried (still)?

Alstromeria Still Life
10" x 10", pen and sepia ink in Daler Rowney sketchbook
copyright Katherine Tyrrell

An orphan work is a copyrighted work where it is difficult or impossible to contact the copyright holder. This may occur when works - such as photographs or illustrations - are published without any copyright notice identifying the originator who holds the copyright or when they become separated from the original copyright notice. The interest groups involved with orphan works are largely

• freelance artists and photographers,
  
• graphic designers,
  
• picture agencies and
  
• the estates of deceased fine artists.

A number of groups representing the above have been very concerned over the last year or so about proposals being made in the USA following the publication of the US Orphan Works report in January 2006. I'm no expert on this so much of what follows is based very largely on material found on websites of organisations mentioned below - but I think I've seen enough to be concerned. Plus I'm wondering whether any UK organisations have made any representations on this issue.

The definition of orphan works

The US Orphan Works Report: On January 23 the U.S. Copyright Office issued their Orphan Works Report, outlining a proposed amendment to the 1976 Copyright Act. It defines an “orphan work” as any work where the author is unidentifiable or unlocatable, and applies to both published and unpublished works, US and foreign (my italics), regardless of age. The legislation would be retroactive. http://www.copyright.gov/orphan/orphan-report-full.pdf
(Illustrators Partnership Feb 20 2006)

I'd be grateful for anybody who can tell me how the USA thinks it can rule on copyright which originated in another country. If it can doesn't that make it OK for another country to determine, if they so choose, that they can copy anybody's work from anywhere - and then where would we be?

The present situation
Current law protects an author’s work upon execution without need for signatures, credit lines or copyright symbols. The originator has exclusive rights to the original work they create. This includes the right to prepare new, derivative works from old works, or to authorize (or refuse to authorize) others to do so. If someone creates a derivative work by infringing yours, current law doesn’t entitle them to copyright protection.

The proposed change
It's being suggested by concerned parties that a proposed “Orphan Works” amendment to the 1976 Copyright Act will jeopardize copyrights and income in an effort by government to make their work freely available and alterable for public and commercial use.

The explosion of unauthorized posting on the internet has increased innumerable instances of unidentified work, through no fault or intent of the originator.

The U.S. Copyright Office proposed that Congress amend existing law to free up copyrighted work whenever the creator can’t be identified or located. The proposed amendment would declare all unidentified works (such as the above examples) to be “orphan” and freely available for use, alteration, or publication by others.

Under the Orphan Works amendment proposed last year - in the bill relating to The Copyright Modernization Act (aka Orphan Works Act) which was defeated, the implication was that an infringer could confiscate this exclusive right - not by creating a substantially new work – but simply by infringing existing copyright. The infringer would then receive full copyright protection. For further explanation please visit the sites identified in this post. This page provides a transcript of the Senate Written Testimony, Hearing on “Orphan Works: Proposals for a Legislative Solution”

Protection for an artist could only be afforded for an artist if they marked their work - presumably in a way which cannot be cropped by others. The scope to mark work does not exist for photographers or illustrators and these tend to be the groups most concerned.

Remedies for infringement are limited and it has been suggested that this means that the Copyright Office will be unable to police infringement.

Why be concerned?
The Illustrators Partnership suggest that the problem has not gone away and that vigilance and support is still required.

It appears that Orphan Works legislation will soon rear its head again. The word from Washington is that it will again be fast-tracked and its sponsors will resist “any significant modifications to the existing draft.”

and

Free Culture proponents say that current law prevents scholars and creators of “transformative” art from using other artists’ work in making their own. They propose that all works published without identifying information, or with that information removed, whether legally or not, should be designated “orphans,” free for public and private use. Corporate interests are lining up to support this amendment, and see this ability to acquire ‘free’ artwork that they could alter and use as desired as a boon to their bottom line.

If you think be have reason to be concerned, the sites of the organisations listed below provide more information and suggested letters of protest

Who's concerned?
Twenty of the visual arts groups met in January to consider action along the following lines

Since we expect the Orphan Works bill to be resurrected soon, with strong congressional support at its back, the groups have agreed that we must work together to counter its negative provisions by supplying Congress with positive alternate suggestions to improve it.

Orphan Works Meeting
by The Board of the Illustrators' Partnership
January 29, 2007

Twenty visual arts groups met in Washington Monday to discuss a unified orphan works strategy.

The interest groups included freelance artists and photographers, graphic designers, picture agencies and the estates of deceased fine artists.

Since we expect the Orphan Works bill to be resurrected soon, with strong congressional support at its back, the groups have agreed that we must work together to counter its negative provisions by supplying Congress with positive alternate suggestions to improve it.

No timetable has yet been announced for the bill's introduction, but the groups will meet again shortly by conference call to discuss this details of this positive strategy.

—The Board of the Illustrators' Partnership

Concerned groups include:

• The Illustraters' Partnership - which has a number of very informative pages about the prphan works issue and a resource page for artists wanting to write letters to Congress
• The Imagery Alliance which includes all those groups listed below

The Imagery Alliance:

Advertising Photographers of America (APA)
American Institute of Graphic Arts (AIGA)
American Society of Media Photographers (ASMP)
American Society of Picture Professionals (ASPP)
Association of Photographers (AOP) (UK)
Art Directors Club (ADC)
British Association of Picture Libraries & Agencies (BAPLA)
Coordination of European Agencies Press Stock Heritage (CEPIC)
Editorial Photographers (EP)
Graphic Artists Guild (GAG)
Illustrators' Partnership of America (IPA)
North American Nature Photography Assoc. (NANPA)
National Press Photographers Assoc (NPPA)
Picture Archive Council of America (PACA)
Picture Licensing Universal System (PLUS)
Professional Photographers of America (PPA)
Society for Photographic Education (SPE)
Stock Artists Alliance (SAA)
White House News Photographers Assoc. (WHNPA)

This link is to the statement expressing concern sent by one of the photography groups.

Links:

• Illustrators Partnership
• Illustrators Partnership : Resource Page for Artists