{"id":1335,"date":"2008-04-16T12:42:00","date_gmt":"2008-04-16T12:42:00","guid":{"rendered":"http:\/\/www.john-howe.com\/blog\/?p=1335"},"modified":"2020-09-25T08:39:42","modified_gmt":"2020-09-25T07:39:42","slug":"orphaned","status":"publish","type":"post","link":"https:\/\/www.john-howe.com\/blog\/orphaned\/","title":{"rendered":"Orphaned"},"content":{"rendered":"

Or Falling off the Edge of the Earth<\/h4>\n

I was going to write something whimsical about how and when the Earth was thought to be flat, but an illustrator friend reminded me of something that seemed far more important than falling off a hypothetical edge of the world, and aptly so, since it appears that the world of image-making as we know it is on the verge of a plunge into the unknown itself. As usual in such cases, it is exceedingly difficult, amidst the welter of unsorted and contradictory information, to get any clear idea of what is really planned. The panic-mongers usually don\u2019t fully grasp the issues and their adversaries often brandish totally unrelated examples. Let me outline worst-case scenarios and paranoid musings based on what I\u2019ve found out or not been able to find out so far. Hopefully, it will prove to be a tempest in a teacup.<\/p>\n

In an attempt to free up access to creative works for which no copyright holder may be found, the US Congress has been working on what is known as an \u201corphan works\u201d bill. It\u2019s been around a while; originally drafted in 2005, the bill died in consultation in autumn 2007, but now it is apparently in the pipeline for presentation before Congress some time in 2008. The full text (as it stands – it may well be being amended and rewritten) is available on the internet, but as a downloadable .pdf file 130 pages long (200 if you count the appendices), it\u2019s not exactly light reading.<\/p>\n

Basically, an \u201corphan work\u201d is one for which no owner can be found. It is intended to free public libraries, museums and such from fear of litigation if they cannot find the copyright owner of a work but wish to publish it in a catalog, for example. All very laudable, and intended to promote public acces to culture.<\/p>\n

Now, the bare bones: and orphan work is a work that may be used if a qualifying user \u201cfirst conducts a good faith, reasonably diligent (but unsuccessful) search for the copyright owner.\u201d* Now, as everyone should know, the term \u201cgood faith\u201d is pretty much meaningless from a legal point of view, but fair enough. Naturally, a \u201creasonably diligent (but unsuccessful) search\u201d implies that some means of conducting one must be used, how is not yet clear. I\u2019ve read that there will be a central registry, that there will be no central registry, that private registries will be created, etc., etc. It stands to reason that the search will be internet-based (it\u2019s hardly going to be door-to-door), which implies that if the work is not on an internet database somewhere, then it will be orphaned.<\/p>\n

But, the owner resurfaces. Once he or she has reasserted his right to the image (I\u2019ve not been able to find a detailed procedure, but it must exist somewhere) then they may bring an action for \u201creasonable compensation\u201d against the user. Reasonable compensation is defined as \u201cthe amount \u201ca reasonable willing buyer and reasonable willing seller in the positions of the owner and user would have agreed to at the time the use commenced.\u201d\u201d All very reasonable indeed, but it does leave the owner only two choices: to accept whatever the user wishes to pay, or drop the whole thing, since \u201cstatutory damages would not apply to use of an orphan work.\u00a0 (The Office agrees with copyright owners who have since suggested that an award of attorney\u2019s fees might make sense in certain instances where an orphan work user acts in bad faith.)\u201d If the use was one you would NOT have allowed in the first place, whatever the \u201creasonable compensation\u201d offered after the fact, well, you\u2019ll just have to put up with it, unless you can prove the user acted in \u201cbad faith\u201d. (This will be a wonderful job opportunity for good faith\/bad faith specialists.)<\/p>\n

The report goes on to add: \u201cThat said, we stress that statutory damages would not be off the table perpetually. If an owner were to emerge, his legal ownership of the copyright in his work is unchanged. Full remedies, including full statutory damages, would be available against new users and, indeed, against the original user making a new, subsequent use. It is a basic tenet of the proposal that subsequent uses may not be based on stale searches, thereby increasing the probability that an owner may be found.\u201d\u00a0 This implies that somehow, the procedure of reassertion would somehow be embedded in the image or associated with it for future searches, but exactly how, I\u2019ve not been able to find out.<\/p>\n

In order to permit diligent searches, two things are needed: a tool to search with and a place to search. Image recognition software exists, and companies like PicScout are in the front row seats. (You have to love PicScout\u2019s demo, which is crafted to ressemble the evening news; they\u2019ve even put in a logo of some kind in the network corner of the screen and embedded a Youtube logo. They even \u201cdemonstrate\u201d how easy it is to remove a watermark – which would work only if you have posted a layered file. It\u2019s quite misleading, very much on the level of those toothpaste and cosmetics ads that show people dressed in white lab coats.) Now, suppose your work is not on the net. It will not be found, therefore a diligent search will orphan it. So, it stands to reason that in order to protect it, then you must make it findable. This implies a register of some kind, which just may not be free, unlike passive copyright protection, which is guaranteed the moment you create something. Presence on a register of some kind would be necessary, even if you live in a foreign country. What exactly is implied by all this is not really clear either. (The government has ruled out the idea of a public registry, so it will necessarily be in private hands. Like the search software, it will have a cost. For which someone will be expected to pay.)<\/p>\n

I\u2019ve run into \u201ccreative\u201d users of my work for a long time now. One person even purchased rights to my work from some individual I had never heard of. Another responded \u201call art is free for the people\u201d. In all fairness, most apologize and stop. More recently, a prominent French magazine published a piece of mine without asking. In reply to my query, they apologized and offered to highlight my work on their web site, which would bring me to the public\u2019s attention. Oh, wow, thank you! I thought, finally, I\u2019ll get some traffic on my site, I should be overjoyed that this magazine is so eager to help me! I\u2019m afraid I sent a reply couched in sarcasm (where it wasn\u2019t drenched, saturated and positively dripping in the same), saying that I was a little weary of publications expecting me not to expect to be paid for use of my work and to just forget the whole thing. (The reply went straight over my correspondant\u2019s head, by the way.) Keeping an eye on one\u2019s rights is always tedious and often time-consuming. The glimpse thus far afforded of orphan works legislation is not necessarily reassuring. It provides no more tools to pursue copyright violation than already exist. And, for the rest of us, who do not live in the US, but have our work published there, this raises a number of unanswered – and slightly scary – questions.<\/p>\n

Parallel to this is the development of the notion of \u201ctransformative works\u201d. \u201cCreative, transformative* or derivative works\u201d would be exempt from copyright law. Promoters of the idea lobby for a \u201ctransformative works exemption\u2026 not restrictively drawn, for instance, ruling out transformations which \u201coffend artistic integrity\u201d, as this would mean that the law would be subject to the vagaries of personal opinion as to what is \u2018offensive\u2019.\u201d\u00a0 You figure out what THAT means. Perhaps this<\/a> will one day be perfectly acceptable. Or this one<\/a> from France. (The publishers in both cases claimed they had tried, but were unable to locate the copyright holder. They must not have looked terribly hard, since in both cases they had copies of the original books.)<\/p>\n

I also wonder about the nature and \u201cvisibility\u201d of an orphaned work. Is it simply quietly orphaned and published by a respectable museum or publisher who has indeed searched for but not found an owner, or is the orphaned status of a work part of publicly available data, in which case other uses may be made before the owner resurfaces. Could it even be inserted in a catalogue of copyright-free works, in which case, by the time you un-orphaned it, you might never catch all the qualifying users?
\nI\u2019ve made a \u201cdiligent good-faith search\u201d to find out, but haven\u2019t found clear answers yet.<\/p>\n

I admit I only just heard about all this just under half a year ago, and I\u2019m still trying to understand fully what it\u2019s all about, but an examination of who is promoting the idea (software developers and stock libraries) and those who are protesting (individual illustrators and illustrators\u2019\u00a0 associations), makes me think it\u2019s worthwhile getting informed. My London agent, bless her, is getting involved, and passed on a few articles last week.<\/p>\n

Here are a few comments from Simon Stern, who is a patron of The AOI in the UK, Director of DACS and Director of Copyright Licensing Agency:<\/p>\n

Objections to the USA proposal
\nThis proposal is unanimously opposed by creator organisations in US because:<\/em><\/p>\n

\u2022 The legislation would act as a perverse incentive for users to declare works \u2018orphan\u2019. Whilst an OW is not copyright free, it is the next best thing. Even if the creator surfaces, the fee is limited to a \u2018reasonable\u2019 use fee, and it is up to the parties to agree what this is. In this situation the user is in a very strong position since:<\/p>\n

\u2022 The cost of litigation by the creator is way beyond any possible sum recoverable. Going to court, if the creator is dissatisfied with the sum offered, is, in effect, pointless.
\n\u2022 It is no coincidence that all the domain names connected to the phrase \u2018orphan works\u2019 have been bought up by corporations in anticipation of this legislation. They clearly see a business opportunity.<\/p>\n

\u2022 There are inherent problems in setting up means of identifying visual works. Whereas a string of words can be searched and found (at least in theory) by a search engine, there is no similar process for image recognition that is anywhere near ready for implementation.<\/p>\n

\u2022 Google images itself has to rely on file names to find pictures, which is totally inadequate for many images and for searching for a particular image.<\/p>\n

\u2022 The proposal affects not just US creators, but creators throughout the world especially (because of the common language) those in the UK.<\/p>\n

\u2022 A problem with all \u2018orphan works\u2019 systems is that there seems to be no practical way of rescuing a work from the orphanage, even if the creator knows it is going the rounds as an orphan, at least in the case of visual images (due to the lack of imagery search technology).<\/em><\/p>\n

If you are interested in reading some of the earlier history of the bill: The Illustrator\u2019s Partnership of America<\/a>:<\/p>\n

…On January 29, 2007, a lead attorney for the Copyright Office warned us that under their plan any work not registered with a private sector registry would be a potential orphan from the moment it was created.<\/em><\/p>\n

This means you would not only have to register your published work, but also:<\/p>\n

\u2014 Every sketch or note on every page of every sketchbook;
\n\u2014 Every sketch you send to every client;
\n\u2014 Every photograph you take anywhere, anytime, including family photos, home videos, etc.;
\n\u2014 Every letter, email, etc., professional, personal or private.
\nThis Would End Passive Copyright Protection: Under existing law the total creative output of any \u201ccreator\u201d receives passive copyright protection from the moment you create it. This covers everything from the published work of professional artists to the unpublished diaries, letters and family photos of the average citizen.<\/p>\n

But under the Orphan Works proposal, none of this material would be covered unless the creator took active steps to register and maintain coverage with a commercial registry. Failure to do so would \u201csignal\u201d to infringers that you have no interest in protecting the work.<\/p>\n

The Registration Paradox:
\nBy conceding that their proposals would make potential orphans of any unregistered works, the Copyright Office proposals would lead to a registration paradox: In order to \u201cprotect\u201d work from exposure to infringement, creators would have to expose it on a publicly searchable registry. This would:<\/p>\n

\u2014 Expose creative work to plagiarists and derivative abusers;
\n\u2014 Expose trade secrets and unused sketches to competitors;
\n\u2014 Expose unpublished and private correspondence to the public on the Orwellian premise that you must expose it to \u201cprotect\u201d it.<\/p>\n

Yet registries will not be able to monitor infringements nor enforce copyright compliance. Even after you\u2019ve shelled out \u201cprotection money\u201d to a commercial registry to register hundreds of thousands of works, you still won\u2019t be protected. A registry would do nothing more than give you a piece of paper. You would still have to monitor infringements – which can occur anytime anywhere in the world; then embark on an uncertain quest to find the infringer, file a case in Federal court, then prove that the infringer has removed your name or other identifying information from your work. Meanwhile all the infringer will have to do is say there was no such information on the work when he found it and assert an orphan works defense. This will be the end result of trying to \u201cresolve the users\u2019 concerns\u201d at the expense of time-tested copyright law.<\/p>\n

Coerced registration violates the spirit and letter of international copyright law and copyright-related treaties. And because this bill would effectively eliminate the passive copyright protection afforded personal correspondence, family photos, etc. it would tear one more slender thread of privacy protection from the fabric of fundamental rights we currently take for granted.<\/em><\/p>\n

Admittedly, much consultation has taken place and the bill has certainly been reworked since then, which is a relief. Had not illustrators made their concerns known, it might well have passed in that form. One can only hope it will end up passing with terms that do not nullify hard-won rights. However, in all fairness, right now much is speculation. When the bill appears once more, hopefully there will be ample time to read it carefully, and once duly informed, to speak out if neeed be and loudly if necessary.
\nI should add that my London agent is very active with a UK-based organization that stands up for illustrators\u2019 rights.
\nHere is a note she sent yesterday on another issue:<\/p>\n

Pro-Action – Pearson\/Harcourt educational publishers case<\/em><\/p>\n

Pro-Action wrote to Pearson educational publishers (formerly Harcourt) in December 2007 regarding the fact that they demand an effective assignment of copyright and all proprietary rights in artwork commissioned for their publications.
\nPearson Primary managing Director, Kath Donovan, responded in February 2008 stating that she believes Pearson can only access commercial ventures across a variety of media by acquiring copyright from illustrators.
\nRegarding the extra rights attained by Pearson through copyright assignments, she states that \u2018rights restrictions are effectively a restriction on our ability to operate\u2019. Pro-Action questioned what is done with these rights as the fees offered by Pearson and other sectors of the educational publishing industry do not reflect the extra rights that are assigned with the Harcourt\/Pearson agreements.
\nThese additional rights generate more income for the company even in a competitive market place, but the freelance illustrators commissioned are only paid for the original usage, whilst still being required to assign all rights. The \u2018rights restrictions\u2019 would not exist if illustrators were paid for those rights.
\nPro-Action have tabled a response to Pearson\u2019s letter. To read about the Pro-Action Harcourt\/Pearson case in more detail go to [url=http:\/\/www.pro-action.org.uk]http:\/\/www.pro-action.org.uk<\/a><\/em>[\/url]<\/p>\n

You won\u2019t be able to read all the literature and case material unless you are a member, but it is all intensely interesting, and illustrates a general tendancy on the part of publishers to expect more freedom to exploit portfolios of rights without rewarding the illustrator. While this is established procedure in the cinema industry, it is new to illustration.
\nNot quite on the same subject, providers such as Photobucket are already offering services which can easily lead to unauthorized commercialization of others\u2019 work. (I don\u2019t mind at all imagery being borrowed for other web sites, if a few simple rules are respected, but I\u2019m not a fan of strangers hoping to make a little on the side off it.)
\nHere is a note I received from Photobucket\u2019s copyright infringement agent following a request to remove my work from a user\u2019s gallery:
\n\u201cAs you may be aware, Photobucket does not itself distribute,
\nstore, or make available most of the content or files available through its
\nservice.\u00a0 Rather, most all such files or content are put forth by individual
\nusers, and Photobucket has limited control over the content its users may
\nchoose to share.\u00a0 Nevertheless, Photobucket respects copyright laws and
\nexpects its users to do the same.
\nPlease be advised that Photobucket has removed the above-mentioned content
\nfrom its website.
\nPhotobucket\u2019s response as set forth herein is a good-faith attempt to
\ncourteously comply with your request at face value.\u00a0 It should not be taken as
\nan admission or acknowledgment, of any kind, and Photobucket expressly
\nreserves all rights at law or in equity.\u201d<\/em><\/p>\n

Now while \u201cPhotobucket does not itself distribute, store, or make available most of the content or files available\u201d, anyone can upload your work and enable prints, the money for which is split between Photobucket and the user, not you. To their credit, the site does react quickly and remove material, but until you get the hang of it and sort out a draft letter, it does take more than just a few minutes of your time. I have just requested the removal of 92 images of mine, all print-enabled. Users are \u201cexpected\u201d to respect copyright, but of course not expected to provide proof of the same. That is up to you, if you happen to stumble on the picture. I am pretty certain it is just some nice kid who likes the work and hasn\u2019t disabled the print interface, but still it\u2019s time-consuming to chase up.<\/p>\n

The problem lies simply in the nature of tools at the disposal of the ill-informed or truly mendacious: before digital technology and the internet, obtaining, reproducing and selling work not your own was ineffecient and hardly worthwhile. Now, as scan of a printed book or a poster can allow you to market that image world-wide as a downloadable print, and it can all be done effortlessly from one\u2019s home with practically no investment. The nature of the naughtiness is not changed, but the ease with which it can be accomplised has multiplied exponentially. Nor do I accept the attitude \u201cWell, if it\u2019s on the net, you\u2019ve got to expect that.\u201d That is the equivalent of saying theft is okay because it is easy.<\/p>\n

On the other hand, I just received this reply from Photobucket:
\nFor legal reasons we must have you submit the url for each one of your images
\nAnd we can only remove your images. please give us the specific links to all
\nof your images in copyright violation.<\/em>
\nI stifle a groan. (I had indicated the first and the last images in the six pages of the gallery and asked for their removal along with all the images in between.) Ninety-two confounded urls to go copy and paste\u2026
\nI don\u2019t know about you, but there are times when I feel I\u2019m very close to falling off the edge of the Earth\u2026
\n*From the statement<\/a> of Marybeth Peters, The Register of Copyrights before the Subcommittee on Courts, the Internet, and Intellectual Property, Committee on the Judiciary.
\nUnited States House of Representatives, 110th Congress, 2nd Session, March 13, 2008
\n(This is pretty much the latest solid information available.)
\nREALMS OF FANTASY<\/strong><\/p>\n

The June 2008 issue of Realms of Fantasy will have an article by Karen Haber on my work. It will be on sale in the US from May 2nd.<\/p>\n

 <\/p>\n\n\n\n
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REALMS OF FANTASY (REVISITED)<\/strong><\/p>\n

In preparation for a special issue of Saisons d\u2019Alsace for the 100th anniversary of the restoration of Haut-Koenigsbourg, we made a little pilgrimage to the castle a few weeks ago. The magazine will be published in the first week of May. More next newsletter when the layout and articles are finalized.<\/p>\n

 <\/p>\n\n\n\n
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Miserable weather makes for the best photos, it would have been a grand disappointment to have blue skies and boring weather. As it was, we arrived in an early April snowstorm.<\/p>\n

 <\/p>\n\n\n\n
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One of the pleasant things about a private visit is that you get to pick everything up and look at it.
\nDoodling in the oriel, one of the three most pleasant rooms in the castle. The book is an old edition of the Hortus Delicarum; the mechanical hand is a copy of a 16th-century one.<\/p>\n

 <\/p>\n\n\n\n
\"\"<\/a><\/td>\n\"\"<\/a><\/td>\n\"\"<\/a><\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

If I look slighty circumspect about stepping out the door, it\u2019s because of the 50-foot drop on the other side – a door to nowhere, halfway up the outer wall of the bastion. Admiring the plaster casts that served as models for much of the statuary. A view from the top.<\/p>\n

And finally, speaking of views, you might enjoy this article<\/a> from across the Atlantic.<\/p>\n

All photos \u00a9 Aude Boissaye & S\u00e9bastien Rand\u00e9<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

Or Falling off the Edge of the Earth I was going to write something whimsical about how and when the Earth was thought to be flat, but an illustrator friend reminded me of something that seemed far more important than falling off a hypothetical edge of the world, and aptly so, since it appears that […]<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_feature_clip_id":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"jetpack_post_was_ever_published":false},"categories":[1],"tags":[385,382,383,384,381],"class_list":["post-1335","post","type-post","status-publish","format-standard","hentry","category-chronicles","tag-copyright","tag-haut-koenigsbourg","tag-karen-haber","tag-orphaned-works","tag-realms-of-fantasy"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/s1PY8Y-orphaned","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/www.john-howe.com\/blog\/wp-json\/wp\/v2\/posts\/1335","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.john-howe.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.john-howe.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.john-howe.com\/blog\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/www.john-howe.com\/blog\/wp-json\/wp\/v2\/comments?post=1335"}],"version-history":[{"count":0,"href":"https:\/\/www.john-howe.com\/blog\/wp-json\/wp\/v2\/posts\/1335\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.john-howe.com\/blog\/wp-json\/wp\/v2\/media?parent=1335"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.john-howe.com\/blog\/wp-json\/wp\/v2\/categories?post=1335"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.john-howe.com\/blog\/wp-json\/wp\/v2\/tags?post=1335"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}