The proposed US Orphan Works Act would dramatically shift the balance away from copyright holders, in favour of those who would like to use creative work without permission, argues EPUK moderator Tony Sleep 

Imagine this : anyone in the USA can use your copyright work without asking, and should you somehow find out they've robbed you, they can escape all legal liability by claiming they didn't know who they were stealing from, and then paying you whatever they consider reasonable.

On Thursday the 'Shaun Bentley Orphan Works Act of 2008' was placed before the US Senate and House of Congress. Ostensibly intended to permit the legal use of orphaned works - works whose copyright status and ownership cannot be traced - the Bill will have these astounding consequences for photographers around the world.

If this Bill passes into law as it is currently written, it will potentially strip copyright control from every photograph that has not been registered with the privatised commmercial registries that the Bill proposes to create. It allows infringers the defence that any work that is unregistered with these agencies is an orphan and may be used.

Should the copyright holder subsequently find out about the usage, they must send a written notice to the user of the image who is then obliged to pay a 'reasonable' amount. In practical terms all other legal redress for infringement is removed.

Two-tier nature of US copyright law

Although the Bill provides for other means of establishing ownership that would disallow the 'orphan' defence, such as metadata, databases and context, the real problem lies in the two-tier nature of US copyright law. 

At present, international copyright law is defined by the Berne convention which makes copyright purely a passive right : if you create something, you own copyright by right, without having to do anything, and it is up to would-be users of your copyright material to trace ownership and negotiate usage.

The Bentley Bill stands this principle on its head by requiring the creator to take costly and time consuming steps to obtain registration, and by limiting liability for infringement for any unregistered work that can plausibly be described as an orphan. Whilst the USA is a signatory to Berne and cannot diverge from its principles, supporters of the Bill claim that copyright remains passive, it's just that if you want the protection of legal remedies you may optionally register work.

This has of course long been the situation in the USA where registration with the Copyright Office permits far higher levels of damages ('statutory damages') to be awarded where registered works are involved. Statutory damages are punitive and may be as much as 70x the actual losses. This has made the orphan rights issue particularly difficult in the USA, since the penalties for using an 'orphan' that turns out to be registered can be ruinous, and it is this problem that the proposed Bill sets out to resolve.

But what the Bentley Bill will do in practice is to downgrade protection of any unregistered work so that infringement has no consequence at all, save what the infringer cares to pay for it if unlucky enough to be caught. For the convenience of the the would-be infringer they can check for registration online, and if the work is unregistered can proceed with impunity safe in the knowledge that any bogus claim of orphan status and infringing use are simply not worth sueing over.

Taking advantage of a copyright weakness 

If there is any doubt on this, consult this Copyright Office report of early 2007 which concluded 'While corporate copyright owners were generally in favor of a reasonable compensation approach, individual authors like photographers, illustrators and graphic artists noted that under current conditions, obtaining a lawyer to even file an infringement case is prohibitively expensive, so much so that only where statutory damages are available is it possible to file a case. If compensation were limited to only a reasonable royalty, they fear that it will likewise be practically impossible even to recover that compensation given the cost of litigation.'

Clearly, if court action is impractical for damages, it is equally impractical for challenging spurious claims of orphan rights. The Bentley Bill takes maximum advantage of this weakness, the only means of challenging either the reasonableness of the sum offered, or the legitimacy of the orphan claim is via the court. The risk, inconvenience and minimal reward of court action seems certain to ensure most copyright holders will be obliged to settle for whatever the infringer offers.

Even the Copyright Office agrees that registration will be essential. Brad Holland of Illustrators Partnership reports that on January 29 2007, twenty visual arts groups met in Washington D.C. with attorneys from the Copyright Office. Holland asked the Associate Register for Policy & International Affairs, :

Holland: If a user can’t find a registered work at the Copyright Office, hasn’t the Copyright Office facilitated the creation of an orphaned work?

Carson: Copyright owners will have to register their images with private registries.

Holland: But what if I exercise my exclusive right of copyright and choose not to register?

Carson: If you want to go ahead and create an orphan work, be my guest!

Catastrophic problem

As Holland says, this exchange suggests that if Copyright Office proposals become law unregistered work will be considered a potential orphan from the moment you create it, and in the U.S., copyright will no longer be the exclusive right of the copyright holder.

This catastrophic problem appears to escape the supporters of the Bill, who maintain quite correctly that unregistered works are still copyright material and that the law is merely creating a limitation of liability for orphan works. Whilst true, this defies all that we know about global copyright abuse in practice and how aggregators and publishers will exploit any loophole or opportunity. 99% of the literal billions of photographs on the internet will never become registered, and a large majority either never had ownership metadata or have had it stripped by accident, software shortcomings or design.

That fact places 99% of photos on the web at infringers' disposal as a freely exploitable resource as 'orphans', with no legal consequence, and the ability to impose the price they'd like to pay in the unlikely circumstance that they are found out.

In early 2007 the US Copyright Office reported  “While corporate copyright owners were generally in favor of a reasonable compensation approach, individual authors like photographers, illustrators and graphic artists noted that under current conditions, obtaining a lawyer to even file an infringement case is prohibitively expensive, so much so that only where statutory damages are available is it possible to file a case. If compensation were limited to only a reasonable royalty, they fear that it will likewise be practically impossible even to recover that compensation given the cost of litigation.”

Prohibitively expensive registration

The cost of registering with the proposed registries is unknown, but photography is such a profligate medium that registration of more than a tiny minority of works is bound to be prohibitively expensive and practically impossible.

It seems clear that what is driving this legislation is a mix of idealistic free culture objectives aimed at minimising creators' copyright, in conjunction with the massive financial potential of privatised registries and publishing of orphan works (some genuinely so) that could not previously be exploited.

A new Orphan Works bill has been on the cards since the 2006 version was stopped by protests led by the Illustrators Partnership. IP have been warning recently that a new bill was imminent, but the precise nature of the proposals was unclear until now. IP's Brad Holland has published an audio interview detailing how the Bill affects every artist and photographer in the world. In the interview Holland says "'It is not what it appears to be, it is a Trojan horse... Under this orphan works legislation, nothing you do would be protected unless it is registered with these commercial registries... they are orphaning all unregistered work'"

Tsunami of IP theft

It seems likely that if the Bill becomes law it will generate a veritable tsunami of theft of IP. Any unregistered work, anywhere on the web could potentially be grabbed and registered by anyone who has done a cursory search and failed to identify the owner so able to claim it is an orphan.

The legitimate owner will then have to prove the work is theirs, issue a written notice, and either accept what the thief cares to pay or commence an expensive and risky infringement case in the US courts. For unregistered work, no significant damages will be available. This will simply be impossible for non-US-based photographers, and expensively futile for those who live in the US. In other words, the Bill is a thief's charter.

To quote from the Copyright Clearance Center “Since this is an election year, and re-election campaigns will be in full swing by late summer, new orphan works legislation will probably be fast-tracked to reach the floor of the House by mid-May”. This gives photographers in the USA and worldwide a very brief window of opportunity, perhaps less than a month, to challenge the proposals.

This article is also published at EPUK