Orphan Works Bill is the copyright thief’s get out of jail free card

It appears increasingly likely that Britain will pass into law The Digital Economy Bill 2009-2010 which contains an “orphan works” provision similar to what the Americans faced last year.

Orphan works encompass photographs or other types of intellectual property where, for whatever reason, the original creator cannot be found. The Digital Economy Bill seeks to implement a mechanism whereby publications can go ahead and use them anyway without having received the necessary authority to do so from the copyright holder.

The Bill could remove a publisher’s existing incentive to pay an author because unlike in the current scenario where copyright infringements result in penalties that are several times greater than the market value of a legitimate use, it appears that under The Digital Economy Bill you need only say you tried to find them and you’re indemnified against any future claim should the photographer later appear.

So the Bill, which is at its second reading in the House of Commons but is yet to see a word of debate, does not ensure anything close to diligent and sincere efforts are made to locate copyright holders. Instead, it actually offers a legal safety net for those intent on the outright theft of intellectual property.

A new regulatory body is to be charged with brokering the deal with the publisher on the photographer’s behalf and it holds any funds paid for the owner should they ever come forward. The fundamental flaw, however, is that the regulator won’t charge anything close to the actual market value of the pictures it handles, nor will it redress a transaction should a copyright owner later demonstrate that a picture was undervalued by the regulator when it acted on their behalf. So the government actually offers the key incentive here for publishers to misuse this legislation to benefit their own bottom-lines.

You could ask why such a Bill is even necessary for the purpose is claims to serve. Search engine technology already exists whereby you simply upload a digital image or provide a link to one that you wish to publish but can’t find the author for, and it will return a list of links to you showing where it can be found elsewhere across the internet. You can use these to find the owner because by virtue of our vanity, where there is a photograph published lawfully on the web, there is almost always a byline to be found. But where images have published unlawfully, The Digital Economy Bill would give that first act of thievery and all those that follow full legal protection.

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But where there is dissatisfaction there is a business opportunity. Digital Rights Management for music has saved that industry billions of dollars in the five years or so since it became the standard for distributors like iTunes. A parallel technology for photographs would be a godsend, but it appears close to impossible to implement a similar concept for a whole lot of technical reasons that readers of the blog don’t need explained. But there just might be another way. Online image search engines have matured to the point where they can often find copies of an original photograph after it has been cropped, dodged, burned, solarised, diced, sliced and peeled. It’s impressive technology and it’s improving constantly. What if it was used to actively follow your registered images around the world wide wide web for you, alerting you when they appear where they shouldn’t?

A savvy web entrepreneur might soon find there’s a dollar to be made and could even become the de facto answer to the problem that is orphan works.

Until then, what about overt watermarking, generated dynamically and applied to our photographs before they are served to any British IP address? Such cyber-sanctions might be the only way to remove the plausible deniability the British government seems to intent on giving to its publishers.

wade@wadelaube.com

www.twitter.com/wadelaube

Related posts:

1. The good news is you still own your photographs