There are images in the world that have no owner or that is how they are perceived. These are images without copyright in the metadata or a lack of information that identify who is the owner of the image. These images are out there in the world in different forms and are “orphans”. The term orphan images is a misnomer as these images do have owners it is just that it is unknown who the owner is, the term orphan means without parents, if we were to infer that the parent is the owner then the term is wholly in correct.
The problem is that people who want to use these orphan works are hesitant to do so because of fear in being caught up in legal proceedings because they infringed on the owners copyright since they didn’t get permission. One way to limit the chance is to try and find the owner of the work and be able to produce evidence of this search when the copyright owner comes knocking on the door. Orphan works are produce all the time, currently with photographs being loaded onto networks and the system automatically removing metadata to make the file size smaller. Other orphaned works are older printed images that have been collected with no reference to owner.
Under the current system orphan works can limit the possible use of a work.
A library has an archive of images from a poignant moment of local history and wishes to create a website for people to visit to experience and learn more about this time in history. The library can only find owners for 20% of the archive. The library is worried that if they were to post the images online they may be sued by the copyright owner if the owner later came forward.
A documentarian finds a box in a thrift store filled with images of celebrities, politicians and events. He asks the owner who sold him or where he got the box from, but the owner is unsure. This box is a treasure trove of images and he wants to use some in his next documentary. Without finding the copyright owners he could be leaving a door open to making payments up to $1000 an image if the owner sues him for copyright infringement.
These are real issues that show how we need to change the way we look at copyright with orphan works but there is a flip side.
As we see more and more now the snapshot from an amateur or common photographic user can give us such strong images with a huge amount of historical information. With smartphones it has become even easier to capture these moments. Look at the images that are coming after recent wars that show the story of the way people are living in these conflicts and what is happening on the ground. Older collections of images from family albums are disposed of out of hand sometimes because there is no one to inherit the images, or they are sold in storage auctions.
With digital images the loss of owner is not due to the pictures being lost but the way people process and share them on the net. With professionals or keen amateurs, they know to add meta data to an image, they know how best to save an image to keep the data, but still afterwards when loading the picture on to a photo sharing site the metadata is usually removed. This happened most recently with the Istock Google deal, when Google removed the metadata effectively making the images orphans.
The NPPA recently stated;
“As visual journalists, our members are squeezed from every side by onerous contracts seeking all rights for little compensation, the proliferation of user generated content by publishers and the widespread infringement of visual works by individuals and organizations. While we understand and appreciate the concerns of those in the copyright community who need to use Orphan Works, we believe it is crucial to protect the copyright of recently created visual works that, for whatever reason, appear to be orphaned when, in fact, they are not.”
If professionals have problems stopping their works becoming orphaned, what chance is there for consumer photographers?
Companies want to have promotional material at minimal cost, how easy it to go online and search in Google and find some really nice images. Searching for orphan images now is easier with Google stating the copyright information.
Imagine you are on the holiday, let’s say Africa, and you share your images online with your friends and family, and you think nothing of it. Of course the metadata has been stripped and now your images are in the ether. An African Hotel needs images for their hotels broucher and website. They do a quick Google search and find a great image. It is yours. If you do stumble on your images on their website and broucher, you could send them a letter stating your ownership of the image. The hotel could reply, we found it on the internet and they couldn’t identify the owner so presumed it was an orphan work. Youmay get some remuneration or you could end up in a legal battle.
It is obvious that we need some change to the copyright system to allow people to use images in their work but also a system that protects the rights of owners.
A new system needs to be universal across the world. The world is interconnected but with different countries having different ways of copyrighting work. The British/European model is more or less you create the work it is your copyright, whereas in America you need to file with the state your copyright. It also needs to be universal so that a person doing something in one country does not fall foul from another. There also (in terms of photography) needs to be a change in the way people see images online. A Google search does not mean that all those images are up for grabs. We are living in a world of Entitlement and this attitude needs to change. All of this would strengthen a new system of copyright.
For orphan works there needs to be something in place where people can take orphan work and apply for a license to use it. This body could apply the market rate for a license of an orphaned work with the money placed into an account. If/when a person sees their work they can make a case to the body that the work is theirs and the Orphan works body could then give them the money they collected for the license. This way the work is applied to be used and the copyright owner can at a later date recover the money without going through litigation.
This is a balanced solution. How though would the body be funded, well it could be funded from the interest of the payments made for licenses. There would need to be a safeguard in place to make sure that images could not be sub licensed because this would take future earnings away from the copyright holder. Each time someone wants to use a work they must apply for a licence just like at an image library. A second safe guard would need to be that the person finding the orphan works should make a search for the copyright holder first, but how do we check this. That is the current problem being bounded around The House of Lords in the UK. What is a detailed search? If it is a body of work would this need to be a search for each image or for the whole body of work?
My idea of an Orphan Works body is similar to the European Copyright Exchange but not the same.
It is also important that we should be making sure orphan works are not being produced. This is something that web developers, social networks and image sharing sites would need to work on, making sure images are not stripped of metadata but also for consumer users to be made aware of how to add information to their images. This could be successfully done through camera manufacturers allowing users to add this information into their camera so it is imprinted at capture along with the make, model, lens, etc.
This is a pie in the sky idea needing a lot of different groups to come together and make changes. Could it happen? Maybe, though at the moment we will need to do our best to make sure our images are not orphaned in the future.