A controversial “orphan works” law, making it legal under certain conditions to use photos and other creative works belonging to copyright owners who cannot be located, took effect took effect October 29 in the United Kingdom. Efforts to enact a similar law in the US continue to languish.
Orphan works laws reduce the legal risk for publishers, film makers, museums, libraries, universities, and private citizens who want to use copyrighted works, but cannot locate the copyright owners of those works. The laws are intended to make the works available for public benefit, provided users conduct a “diligent search” for the owners before using the works. But photographers, artists, and their trade groups have resisted the laws, fearing they will end up protecting infringers who don’t search diligently for copyright owners. Some opponents fear that orphan works laws may even give infringers incentive to turn traceable works into orphan works by stripping away credits and other metadata.
But so far, the new UK law is causing little worry. “I don’t think it’s going to be a problem for photographers,” says David Hoffman of Editorial Photographers UK (EPUK).
The American Society of Media Photographers (ASMP) and other US photo trade groups that issued dire warnings two years ago that the UK law would bring about “a firestorm of international litigation” are mostly quiet now. “I think the law they’ve come out with [in the UK] is pretty reasonable,” says Eugene Mopsik, the outgoing executive director of the ASMP.
He adds, “Personally, I’d be shocked if my sister associations weren’t agreeable to [a US law like the one] fashioned in UK, with a proviso that some means be put in place for reasonable compensation” when an owner of what was thought to be an orphan work steps forward.
ASMP, Professional Photographers of America (PPA), American Photographic Artists (APA), Picture Archive Council of America (PACA), National Press Photographers Association (NPPA) and other US trade groups have staunchly resisted passage of an orphan works law in the US in any form that would be acceptable to libraries, museums, and others who have pushed for such a law. Orphan works bills have so far failed twice in Congress–in 2006 and 2008. An effort initiated by the US Copyright Office to try again has stalled. (More on that shortly.)
Hoffman says the UK law addresses the concerns of copyright owners with extensive guidelines for determining whether a work is “orphaned.” The law requires applicants to submit evidence that they satisfied the “diligent search” requirements. (To see those guidelines, visit the website of the British Intellectual Property Office (IPO), the UK equivalent of the US Copyright Office.)
The guidelines, drafted by Hoffman and others representing the interests of copyright holders, are onerous enough to discourage most people from applying to the IPO for an orphan work usage license. “It would be much easier to go to a photo agency to license something else, unless there’s a specific picture you really, really want,” Hoffman says.
Moreover, commercial users cannot use orphan works free-of-charge: They will have to pay license fees to the Intellectual Property Office. The fees would be paid to the copyright holder, should he or she step forward and claim ownership of the orphan work at a later date.
Here in the US, the orphan works bills that died in Congress were similar to the UK law, but had important differences. The US laws also would have required would-be users of orphan works to conduct “diligent searches,” with the details of the procedures and guidelines for such searches left for the US Copyright Office to figure out.
But unlike the UK law, which gives the Intellectual Property Office power to set fees for use of orphan works, the US laws would have left it up to users and owners of orphan works–in cases where owners eventually stepped forward–to negotiate a “reasonable” fee for the use. If the parties disagreed, the copyright owner could sue in court for a “reasonable” fee, but not for damages.
Both US bills ran into resistance from copyright owners and their representatives, who considered the proposed laws too complicated and too unfair to creators.
The US Copyright Office has tried in the past two years to revisit the issue, with hopes of reviving orphan works legislation in Congress. That effort appears to be going nowhere. (The Copyright Office did not respond to PDN’s calls or emails.)
One reason the effort has stalled is because the Library Copyright Alliance, which had been one of the biggest advocates in the past for an orphan works law, has stopped pushing for it. The reason is because the LCA believes that federal courts have expanded fair use protections to the point where most uses of orphan works by libraries would now qualify as fair use.
The LCA has recently declared that another orphan works bill “is bound to fail” because “there is less agreement now than six years ago both on the existence of a problem and the best approach to solve it” and that “the divisions between different communities may be even deeper now than before.”
A number of organizations representing copyright holders have recently told the US Copyright Office they would support an orphan works law, provided it includes caveats. But some of those caveats are unacceptable to many advocates for an orphan works law.
For instance, American Photographic Artists (APA) wants to make users of orphan works subject to actual damages, statutory damages, and attorneys’ fees for infringement. With no threat of damages, the APA argues, infringers can strip images of identifying information, call them “orphan works,” and avoid penalty.
For advocates of an orphan works law, however, the whole point is to shield good-faith users of orphan works from costly damage awards for infringement.
In addition, ASMP and NPPA are both calling for an orphan works law that provides creators with a “small claims process” where they can enforce their rights in cases where they have disagreements with users of orphan works.
A “small claims process” would make it easier and less costly for photographers to press infringement claims against users of orphan works. But setting up copyright small claims courts would require a separate, significant change in copyright law that raises constitutional issues about legal due process for infringers. And advocates of orphan works laws are highly unlikely to agree to adjudicate disagreements in special courts that give legal advantages to copyright holders.
Mopsik says the call for a small claims copyright court “is something we’d love to see,” but wouldn’t be a deal killer. He emphasizes that he will soon be stepping down as ASMP executive director, and doesn’t know what stance his successor or the ASMP board will take on the issue in the future.
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