Original URL: http://www.theregister.co.uk/2011/02/18/photographers_orphan_works/

Stealing photographs for fun and profit – snappers respond

Adopt and die

By Andrew Orlowski

Posted in Media, 18th February 2011 13:01 GMT

Imagine finding a car outside your house, with no numberplate, but with the keys in the ignition and the engine running.

Few of us would seriously think about climbing in for a joy ride. Few of us would suppose that the lack of a numberplate turns the unattended car into public property; we know that sooner or later, if we took it for a spin, there would be repercussions.

Visual artists such as photographers and illustrators find themselves in a position similar to the owners of a car fleet that mostly has no numberplates. Most of the photos and illustrations washing around on the interwebs are "orphan works", even very famous ones, as they have no attribution or identification attached. And although the law is quite clear about usage, which obliges the potential user of a photo to discover the owner and obtain their permission, with no contact information (or out-of-date contact information) many users of the art just don't bother.

Naturally there are powerful vested interests who want to make it even easier to acquire this property, minimising the expense of finding out who the property owner is – and paying them. Especially paying them. These forces range from multinationals such as News International and the BBC, Google and Facebook, to Big Culture institutions on a mission-creep. (You've never heard of a bureaucracy that abolishes itself – and you won't find a library or museum that doesn't want to turn itself into an uber-publisher or New Age licensing authority).

It's hard to keep your rights information intact, when big media removes it by default. The BBC strips out all metadata on photographs as they're uploaded to its website, for example. It's an automated orphan-creation mechanism.

But because orphan works don't matter too much to the movie or music industries (who do most of the copyright lobbying), the issue has slithered along, without much challenge.

Even veteran copyright-antagonist Professor Lawrence Lessig finds some of the proposals that weaken the creator's claims over orphans to be a step to far. One recurring idea to let big business users off the hook comes in the form of "reasonable search". If they can show they've made some attempt to find the author, but come up empty handed, they can use it. In response to such a proposal in the US, Lessig wrote that, "photographers and other existing copyright holders are right to be outraged at the proposal. Hiding under the cover of 'reasonably diligent search', much of their work will be — unfairly — threatened.'"

Yesterday we described a novel justification for seizing your property - from a Department of Business-funded academic project, which married paternalism with ethnicity.

"When a work is designated as 'orphaned', it suffers a relative loss of 'parental control', and such a work might be taken "into care" by the government, collecting societies, or other organisation," writes Professor Suthersanen. She canvassed views. Here's the response from the photographers' group Stop43.

Resale of stolen goods not equivalent to 'adopting orphans'

The Orphans Project questionnaire refers to people publishing or re-using someone else's work as the "creators" - not the original artist. Would life be easier, if they didn't have to ask the owner?

"Creators have few difficulties," Stop43 points out in its response.

"Thanks to Berne, as original creators we own the rights in the original works that we create. Those so-called 'creators' whose derivative works consist of the recycled IP of others, aka 'mashups', appear to us mostly to operate in general ignorance of copyright law, and often appear to have little respect for the creators of the original works they use, for those original creators' legal rights, and for those original creators' economic interests. They also appear to have few difficulties in obtaining rights or clearances in pre-existing works, because they generally tend to ignore them or treat them with contempt."

Stop43 continues: "Aggregators, curators, marketers and resellers, of course, find the current legal situation in general much too complex and costly. They would always prefer to have unfettered freedom to use and profit from the IP of others."

The questionnaire goes on to suggest proposals including giving publishers full exemption from liability, limitation from damages, and various registration schemes.

Stop43 proposes an interesting eBay-style trading market where sellers (creators) could meet buyers (people who want to their use their stuff) - privately funded. This requires commmercial users to register the stuff they use - with a voluntary obligation to register works by owners. Anything not identifiable can be used for cultural, not commercial purposes - but only for cultural purposes. If somebody wants to make money from an orphan work, they should jolly well share the rewards with the creator. This does not seem unreasonable.

The snappers' group also strongly opposes any new licensing authority.

"We see this as little more than a bureaucratic gravy-train," Stop43 points out, citing a history of collective agencies becoming captive to big business interests.

The questionnaire then suggests removing amateur user-generated material from the protection of copyright. The photographers point out that "many of the iconic news images of recent years (eg, the Concorde crash, the 7/7 London bombs, the Boxing Day tsunami) were shot by amateurs.

"Amateurs can rival professionals for artistic merit and technical execution, and as these images exemplify, for economic value to media organisations. There is no valid rationale to treating such images separately from traditional photographic images or the work of professionals and masters," says the group.

"Creators did not cause the orphan works problem and the solution does not lie in stripping creators of their rights," Stop43 concludes.

One issue unresolved is what constitutes an orphan. How hard must you look, and how quickly do you give up looking, for a work to be considered an orphan? Big Media would answer those as "not very hard" and "very quickly" – but if they were required to contribute data on works they use to a registry, the problem would cease to be a problem.

Without the backing of big businesses, photographers (both professional and amateur) and illustrators find themselves in the trench alone, here. There's no RIAA or IFPI to fight the corner of the individual creator, and the copyright academics are no help - few people have a poorer grasp of what copyright means in practice - especially if you're a "sole trader" or tiny business. Copyright academia now combines two ugly intellectual prejudices – "property is theft", and "authorship is theft". The Orphans Project is a nasty reminder of both. ®