The orphan works legislation, last seen in 2006, now has the attention of Congress again with two similar bills, one in the House and one in the Senate. These bills, should either of them pass, could have a drastic impact on copyright holders both within and outside of the United States.
But what should bloggers expect from this bill? How can Internet-based authors work to avoid having their work becoming “orphaned”?
The answer depends heavily on the kind of work you do and how much protection you want for it. However, what is clear is that at least some bloggers have a good reason to be concerned and should consider taking steps now to avoid a problem down the road.
Background on the Bill
The problem of orphan works was created by a combination of constantly-extending copyright terms and lack of information about the works that are protected. With the current copyright term reaching 95 years on corporate works and life plus seventy years for individuals, there are many works that, while almost certainly are still protected by copyright, do not have known copyright holders from which to obtain permission for use.
These works are locked away, inaccessible to anyone who would want to use them. In many cases, this problem is exasperated by deteriorating film and paper, which virtually ensure that the work will be destroyed before anyone is able to legally copy and preserve it.
Under the bill, someone seeking to use an orphan work could do so so long as they met the following requirements:
- The person using the work performed and documented a “resonably diligent” search.
- The user identifed the copyright holder as much as possible.
- If the use was ongoing, the user stopped their use if the copyright holder came forward later.
- If the copyright holder came forward, the user paid a fair licensing fee for the work, if the use was commercial, and negotiated with the copyright holder in good faith.
However, the 2006 bill was killed before passage, in large part due to a protest by photographers, artists and illustrators, who were concerned that their works are routinely distributed without attribution as part of their trade. They were concerned that the bill could cause them to lose rights to their work and force them to take extra steps to protect their future works.
The matter was seen as largely finished until a similar bill was introduced to both the House and the Senate last week. This bill, at least in the House version, attempts to offer additional protections to visual artists by postponing the start date, requiring users to file advance notice before exploiting an orphan work, calling for the creation of databases (to be operated by the U.S. Copyright Office) to help identify pictorial works and allowing higher compensation to a copyright holder if they registered their work with the USCO .
However, these changes have done little to placate visual artists, many of whom have already started to rally in opposition of the bill. It seems that the bill, though allegedly “fast tracked” for passage, will face much of the same opposition the 2006 one did and it also lacks the strong support of the copyleft community including Professor Lawrence Lessig, despite their desire to address the problem of orphan works.
But should the bill pass, it could mean a drastic shift in the copyright climate on the Web and bloggers. That impact would strike bloggers both within and without the United States since the bill makes no distinction between local and international works.
Thus, we all need to be aware of what it could mean and what they can do to mitigate against any impact.
Who is Impacted
Should this legislation pass, the sharpest impact will likely be felt by visual artists. Pictorial works are very difficult to search for and are routinely passed around the Web without attribution or other information about the creator.
It is very difficult for a person to take an image, which they have little information on, and locate the copyright holder. Compare that to text, which is easily searchable by just looking for quotes, and it is easy to see why visual artists worry about the orphan works legislation.
Audio files share a similar issue. However, audio fingerprinting services, such as Gracenote already provide some protection. Also, since a large percentage of audio files contain lyrics, which are easily searched for on the Web, the concern is at least somewhat lessened for musicians and other audio artists.
Video content, much like audio, is also frequently fingerprinted and tracked, but the nature of the medium is that information about the copyright holder is generally attached. Whether it is in a credit roll or in the footage itself, video has more opportunities to identify itself than still images.
As such, it would seem that photobloggers and artists have the most to be concerned about. Podcasters, musicians and videobloggers have slightly less while bloggers that work solely with text have the least.
Still, it is at least theoretically possible for any copyright holder to have their works become orphans, that is why it is important to take steps now to prevent any problems later.
Being a Good Copyright Parent
No matter what one thinks of the law itself, it is clear that no copyright holder wants their work to be an orphan. Even if one chooses to give many rights in their work away, the idea of one’s work being exploited without permission or knowledge, simply because the rightsholder could not be found, is bound to make many uneasy.
As such, it is is important to do what we can to prevent that from happening and, fortunately, there are several simple steps that can help greatly.
- Tag Your Work: If you work in either audio or image files, be sure to take advantage of metadata within the file. Use EXIF and ID3 data to embed your information with the file. Though this information can be stripped out, often by accident, it does add a layer of protection.
- Include Credits: If you work in video regularly, include credit for your work in as many places as practical. Include a credit roll and, if possible, an overlay with your information. Also, be sure to attribute any work you use in your video to both avoid copyright conflicts and to prevent those works from becoming orphaned.
- Look into Watermarking Solutions: A visual watermark on an image is the best protection against a work becoming an orphan. However, invisible watermarking solutions, such as Digimarc, may help protect your work from being orphaned as well.
- Register Your Work: Though not practical for every item, registering your copyright with the U.S. Copyright Office can add an extra layer of protection. While the database is not easily searchable, it could, depending on the final bill, result in higher payments should your work be orphaned and found.
- Keep Contact Information Up to Date: Depending on the exact wording in the final bill and how courts interpret it, there is a possibility that, even if the copyright holder is found, that the work could still be orphaned if there is no way to reach him or her. Be available and have that information prominent on your site.
The main thing is to think like someone who found a copy of your work but did not know where to find the creator. Making sure your work is available in all of the standard places, such as with trade organizations, search engines, etc. is a good place to start.
Most importantly though, make sure that you can be found should someone perform a “reasonable” search to find you. Even if you want to remain anonymous, you need to make sure others can reach if you want to prevent your works from being orphaned.
At the moment, all we have are two proposed bills before Congress. Though similar, the bills do have key differences and both are likely to change drastically before, and if, they are passed.
The best thing any copyright holder can do, blogger or otherwise, is pay attention to the bills as they make their way through and make preparations for their passage.
Though their passage is far from certain and the nightmare scenarios many have expressed concern about are unlikely if they do, it makes sense to be cautious and ensure that you can be easily found if your work is discovered.
It is good practice regardless of what legislation is before Congress and it is something that anyone who is serious about copyright protection should do.