Discussion: Orphan Works

[mr_pikachu]

Hopefully you didn't come to this thread expecting to read about Oliver Twist 2: Orphan Works. ...Actually, maybe that would be appropriate for the subject matter. Weird.

Alright, so there's apparently a lot of stuff going on with a proposal to add "orphan works" legislation to copyright law in the U.S. and Europe. Some people like the idea, saying that it will make it easier for people to make productive use of others' creative works when the creator simply cannot be contacted. Others are rising up against it, claiming that it will strip artists of their rights unless they undergo expensive litigation (which isn't guaranteed to be successful).

This has major ramifications for us writers. If you believe one side of the argument, anyone who wants to use another person's work but can't contact them to get permission will be able to do so. Say, for instance, you wanted to use a famous quote in a guide to writing technique, but the author of that quote had died. You would be able to use that quote, provided you gave all credit to that person, etc., etc.

If you side with the proposal's opponents, however, then anything you create can be used freely by anyone as an "orphan work" unless you register it with multiple registries, each of which has its own fee. New registries could pop up at any time, orphaning everything you've registered, and successful artists could quickly go out of business from the cost of registering all their work. And if someone were to violate your rights and publish something that was properly registered, then even a court battle (which would further drain your resources) might be unsuccessful, especially if you think the judicial system is flawed.

I have not fully looked into the proposal; actually, it's very difficult to do so, as I can't find any bill that has been formally introduced for this session. (In the U.S., the most recent attempt at "orphan works" legislation was H.R.5439 (http://thomas.loc.gov/cgi-bin/bdquery/z?d109:h.r.05439:) which may be a useful point of reference.) But here you have the two sides of the argument.

To give you something further to ponder, here's a deeper explanation of each side: pro-orphan works (http://maradydd.livejournal.com/374886.html) vs. anti-orphan works (http://mag.awn.com/index.php?ltype=pageone&article_no=3605&page=1). It may be better to read the latter article first, as the former one is pretty much a response; I haven't found anything significant from the anti-legislation people shooting back yet.

I'm no legal expert, so I'm not going to say which side is right and vice-versa... at least, not without looking further into the issue. But considering the impact any laws of this nature could have, presenting the debate is more than worth the time it took to craft this post. Everything could change dramatically... be aware, and discuss.

[Houndoom_Lover]

I saw this...I'm not two shakes on the legal tree, but from what I saw, anything that is not signed or verified can be stolen and used, which makes me wonder...What about photographers that can sign the front of their work? And then there is the cost...Something like this can't be past >.< Can it? There goes society.

>.< I'm scared *wiggles my arm*

[PsiUmbreon]

So your work can be legally stolen unless you pay a bunch of people? This sounds like yet another move by greedy corporate fat cats to take your money.

[Pichu Luver]

Hmm, interesting, never heard about this before. I think I found the Bill you're looking for, its from 2005 though, so I'm unsure how useful it would be (here (http://www.copyright.gov/fedreg/2005/70fr3739.html)). It doesn't look like the bill has been redefined as it went to public debate in July of 2005 and that's where is stops in the USA Copyright Office website on it (here (http://www.copyright.gov/orphan/)). The most recent one was a hearing that can be watched here (http://judiciary.house.gov/oversight.aspx?ID=427) if you have real player. And I believe mr_pikachu on that website pro orphan law, it had a link to a statement made on that speech.

Though for a point of reference, Canada already has it. There's a list here (http://www.cb-cda.gc.ca/unlocatable/licences-e.html) of the accepted applicants for "Unlocatable Copyright Owners". There's a brochure too apparently on it. Mind, it's a smaller country then the USA but since 1990 (my guess as that's when it came into being), only 220 have been issued. Also, they collect a fee that if the owner should ever resurface, they get paid for the use of their work... though only for five years after the licence expires. After that... well tough luck?

In the UK, there's another law there, though it only deals if the copyright has probably expired. Then if the owners can't found, you can use thier work.
(For reference I got the info here (http://www.copyright.gov/orphan/orphan-report-full.pdf) on page 3741).

Unfortunately in that same report is said that they didn't favour the Canadian approach because it is likely that the owner would never resurface (for example because the work is decades old so the owner is likely dead). So they have a bunch of money sitting around when it could be in someone's pocket, heh. Still it only sits there for however long the licence lasts and then for five years afterward. After that my guess is they get their money back, though I don't actually know.

Suuu as to what I think. Is it fair? Well depends on who you're asking I guess. Is it fair for a company/person to take a work because they can't find you? Perhaps not, but is it fair for the company to pay royalties to someone who may be dead? Though apparently a copyright lasts for 50 years after the person perishes so I guess it goes to the heirs/publisher. Also, if you want to use a work but can't because you can't find the person to ask permission you are not allowed to use it (well you can but you might be sued). Especially if its for commercial use (like say a reference in a book). That is probably frustrating so if you can prove that you have looked very hard for the person (and credit them in the publication) but can't find them, well I don't see the problem.

Small detail here though. If its been published on the Internet, odds are you're never going to find the person. So you can't use it but then your work never sees the light of day as it were. However, if they put in that if a person comes forward and can prove a work used is theirs, they should be paid. So my point in a roundabout rambling way (as its 1:30 am so I'm writing as I think, forgive me) I think its ok, but ONLY if a person can come forward, prove it's theirs and be paid.

Again apologies if this is not exactly coherent, but this was interesting to me and I wanted to say what I thought.

[mistysakura]

I agree with most points in the pro article in that the anti article is poorly researched and makes sensationalist claims (e.g. all works become orphan works without registration). As River said, if someone shows up and can show a work is theirs, it's not an orphan work any more and this doesn't require registration. I'm okay with that. Provided that the person who uses the orphan work still has to have a full citation, it should be relatively easy to 'deorphanise' works, leaving the true orphan works the ones where their creators have indeed gone AWOL.

However, citation is absolutely essential. Houndoom_Lover raises a good point about things not always being signed and verified. However, if the user of the artwork is required to cite the source, they have admitted the creator's identity already, so verification shouldn't be necessary if someone pops up with proof of identity and says the work is theirs. This does have a loophole, though; what if a user deliberately cites the wrong person as the creator? Then the creator would have to prove the artwork is theirs, which is financially not viable for most.

Another concern would be that the extent of the search for the creator would have to be clearly defined. The user has to have made a sufficient effort to find the creator, or else we'd have people claiming they Googled and found nothing and so used the work. Chaos.

[Mew Master]

Actually, I did some digging on both sides of the issue. The original claim by Mike Simons was an outrageous claim that has little evidence for anything he says. I dug around and found the original Orphan Works report (yup, Report, not Bill or Legislation. Report). Then I looked around some more and like stated above, I couldn't find any kind of bill entitled "Orphan Works" for the current session. So I looked around some more and found some interesting things.

I go into a better explanation (about my original reaction and after I had calmed down a bit to think) on my DevArt Journal (http://dr-studios.deviantart.com/journal/17861186/#comments) I ALSO have the original statement from Peters about how to approach Orphan Works and how to search for those who have Copyright (this was said to the Congressional Meeting this year in March, link in Journal). In it, she states that research in good faith. So you by basic "good faith" cannot just Google it and find nothing and then claimed that you exhausted all search venues (Google and Yahoo get different Image searches for the same subject, plus there's also message boards as thus, along with other sources of information such as contacting the place where you found the art).

Of course if this is brought up in a court of law (in a Copyright Infringement suit), stating that "I Googled for it and didn't find it," isn't going to fly, and they'll be fined.

After I read through this and some other articles and Blogs about people who understand current Copyright law better than I, I'm not that concerned with it as far as it'll affect me as an Artist (both written and visual media). And truthfully I was on the bandwagon to writing my representatives and senator to chew them out about it... Good thing I didn't do it, because why complain about a bill that's not even in front of Congress Right now or ever?

[Charles Legend]

O_o?! Ok but I don't get what this has to do with writing a fanfic unless your implying that we should give credit for every single freaking bit of reference of other peoples works we make, I mean really Albert Einstein is one of the greatest minds this world has ever known and yet it was he that said quote "The secret of creativity is knowing how to hide your sources." ;)

I mean really Mayor Ryu Owns a freaking Reyquaza it should have be Clear as Crystal that he used it to Own the cop's Bidoof, But no it was not becuse someone jumped the shark and did not stop to look at the evidents before rushing in with both guns a blazing and had a shoot first ask later altitude, real smart :rolleyes: what's next are you going to sic a Dark Tyranitar on me?! -_-;;

End Sarcasm. :P

~Charles Legend

[mr_pikachu]

Charles: It's pertinent for those of us who are considering professional writing one day, and it could have significant ramifications for fanficcers as well. Depending on the eventual outcome that develops, publishers, producers, and so forth could be prompted to crack down on fanfiction authors.

All: In theory, an orphan works law might not be bad. There are two problems that I see, however. The first is that legislation rarely stops after an initial decision; once you've opened the floodgates, they're nearly impossible to close. The second is simply that the judicial system is often absurdly unreliable; beyond the expenditures involved in trying a case, activist judges are frequently tempted to rule against the letter of the law, in effect legislating (often poorly) from the bench.

On a somewhat related note, the Harry Potter Lexicon case is well underway. Rowling had a bit of an outburst near the end of yesterday's proceedings, arguing that the vast majority of the book was simply ripped directly from her books. The trial itself is over, but a decision is not expected for at least a few weeks.

Rowling implores NYC judge to block publication of guide (http://news.yahoo.com/s/ap/20080417/ap_en_bu/harry_potter_lawsuit)

This may directly impact fanfiction as well as the orphan works proposal... if the judge rules against Rowling, what does that say about creative control?

[Gavin Luper]

Mew Master: That's welcome information. Initially I was pretty worried about the sound of this, but that's relieved my fears slightly. Still, I guess if this kind of this was pushed before parliaments in our countries, we'd have reason to be concerned. Hopefully that doesn't happen. I like the idea that what I create inherently belongs to me, and I feel that that's an ideal worth upholding.

Charles: I told you clearly that if you required clarification on the Fanfic Rules or the infraction I gave you, you ought to PM me or one of the other mods, not bring it up in a barely related thread. If you want to talk about the issue further, please take it up with me via PM: I'm more than happy to discuss it with you. But if you don't plan on contacting me privately, then drop it now and quit talking about it in the forums.

Brian: Go, Jo! That's kind of all I can say without making it clear I don't know a whole lot about the case. ... Too late.

[Lady Vulpix]

Sorry for arriving late to the discussion. I think it makes sense if the author is dead. In that case he/she won't be able to make any claims (his/her family may, but it's not their creation). In any other cases, I don't think it's right to use for commercial purposes the creations of someone who may not want to share them, whether you can contact him/her or not.

[Mew Master]

The thing about it is though, that after death, the original creator of the work still legally owns it for 70 years after their death. Their estate can continue to make claims to it and seek legal action if they so desire.