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09-29-2008, 10:07 PM   #16
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I think there are 2 companies behind this. Getty Images & Bill Gates new photo business.

It's a disgraceful piece of legislation!

09-30-2008, 12:03 AM   #17
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QuoteOriginally posted by stevebrot Quote
Legalities aside, all I can say is that I would be a little miffed if I were a professional photog and found that a few 1000 of my images were listed as an available torrent on their site!

Steve
I can't imagine a law firm trying to prosecute European nationals who committed the grievance while in Europe under US law be getting off to a very good start in their case. Nor can I imagine a Swedish judge going, "You know what, let's prosecute you under US law".

Anyway, I think one of your fellow Vancouverians, William Gibson, has a valid point regarding that sort of copyright breach: as long as it's not for profit, there's no reason to care. Hell, apparently Gibson's flattered someone took the effort (and given the nature of his writing, he probably shouldn't complain .)
09-30-2008, 09:38 AM   #18
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QuoteOriginally posted by lithos Quote

Anyway, I think one of your fellow Vancouverians, William Gibson, has a valid point regarding that sort of copyright breach: as long as it's not for profit, there's no reason to care. Hell, apparently Gibson's flattered someone took the effort (and given the nature of his writing, he probably shouldn't complain .)
I think you are thinking of the OTHER Vancouver. I lived in the place up north in the early '80s, but now live in Vancouver, USA. The names are the same, but the places quite different.

I actually have a pretty laid back attitude regarding copyright, though I don't like the idea of some robot harvesting images on the Web and then providing them for sale from a stock catalog after a half-hearted effort to contact the owner. That is just wrong.

Steve
10-05-2008, 02:30 PM   #19
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QuoteOriginally posted by stevebrot Quote
Since when does the U.S. require registration of copyright? To hold a copyright, all you have to do is claim it and defend it if it is infringed. Now you may register a copyright, but that merely bolsters your claim to statutory damages and gives you specific legal rights if the issue ever goes to U.S. court.

If anyone is interested

U.S. Copyright Office
As for the legislation mentioned by the OP, I would recommend that the U.S. members of this forum contact their representatives. There is an election coming up...

Steve
Thats true Steve... In the US you do not specifically have to "register" your photos with the copyright office to own the copyright. Registration primarily enables statutory damages and lets you recover legal fees. According to the Copyright Office:

QuoteQuote:
If registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney's fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.
Also another important point:

QuoteQuote:
Before an infringement suit may be filed in court, registration is necessary for works of U.S. origin.
So if a work is infringed you have to register before you can sue. This puts you at a huge disadvantage.

One thing that is important to know is that you do not have to register each photo separately. You can register a whole year's worth or even a lifetime's worth of work on ONE form. The only condition is that they all be "unpublished. I do all photos from the previous year each January.

The US Copyright Office has a very specific definition of "publishing" too According to them:

QuoteQuote:
“Publication” is the distribution of copies or phono records of a work to the public by sale or other transfer of ownership or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication.
A public performance or display of a work does not of itself constitute publication.
So as far as the copyright office is concerned, posting a photo on the internet does NOT constitute "publishing".

You can register any number of unpublished photos using the Form CO

MAKE SURE YOU FOLLOW THE INSTRUCTIONS as the form is interactive and generates a unique barcode for each submission. This greatly speeds up processing.

Once you complete the form send it and a CD/DVD containing all of the photos you wish to submit under the registration along with a check for $45 to the US Copyright Office.

There is a different form, GR/PPh/CON, for published photos but it can be used for groups of photos as well.

10-06-2008, 08:59 AM   #20
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QuoteOriginally posted by little laker Quote
...

For those that aren't aware, from what I understand the Orphan Works Act basically gives anyone the right to use your photographs for anything they choose to. If they can't contact you with what they consider as a reasonable amount of effort.

Any photographer whom has ever posted an image on-line risks loosing all the rights to it if this act becomes law.
There are two sides to the coin on this issue:

Obviously, it is a bad thing if someone steals someone else's creative or artistic work. This may be a copyright violation or otherwise banned under existing law. If someone writes a book or publishes photographs and wants to retain the rights and earn a living from their work, then they are certainly entitled to do so and others should be barred from stealing their work.

On the other hand, there are orphan works where the owner cannot be located or has ceased to exist (through death, corporate dissolution, etc.). It would be unfortunate if historically important images and text could not be reproduced for the benefit of posterity simply because the owner died and no heirs can be found. Imagine that you are writing a history of the Civil War, or the 1906 San Francisco Earthquake, and you discover some great photos in a library archive somewhere. The photographer is long dead and there is absolutely no way to determine if any heirs or anyone else has retained any rights to these images. Should the images be lost forever because of this? What if 150 years from now or even 50 years from now someone would like to use one of your images to show what life was like in the early 21st Century. Would you want to prevent this and have your images thrown away, simply because you are dead and your heirs have long forgotten you existed?

It is a delicate balancing act between stealing property that should be protected, and freeing valuable property that is orphaned after the owner has departed. There are examples of obvious violations of copyright where authors or artists' property has been stolen. And there are examples of valuable historical images being lost to the world due to unreasonable legal protections blocking reasonable use. I haven't read the Act in question so I can't comment on whether it does a good job balancing the interests. But there is a problem with orphan works under U.S. law that does need to be addressed in one way or another.

* * * * *

Edit:

I looked at the link from the O.P. and the subsequent link. Absolutely no info whatsoever on the substance of the bill in question or why it would be a calamity. Be careful as to who you believe. The link referenced on dpreview claimed support of some photographer's associations, but also claimed support from some record producers. The media companies are happy to throw away any work of art if the profit in them has been used up. On the other hand, the sponsors of the bill include Republican Orrin Hatch, who I wouldn't trust as far as I could throw him.

Here is the official summary of the bill, and an excerpt from the abstract:

http://www.copyright.gov/orphan/

The legislation is sensible: it would ease the orphan problem by reducing, but not eliminating, the exposure of good faith users. But there are clear conditions designed to protect copyright owners. A user must take all reasonable steps, employ all reasonable technology, and execute the applicable search practices to be submitted to the Copyright Office by authors, associations, and other experts. The user must meet other hurdles, including attaching an orphan symbol to the use, to increase transparency and the possibility that an owner may emerge. If an owner does emerge, the user must pay “reasonable compensation” or face full liability. Reasonable compensation will be mutually agreed by the owner and the user or, failing that, be decided by a court; but it must also reflect objective market values for the work and the use. This framework would facilitate projects that are global (think rare text in the hands of a book publisher) as well as local (think family portraits in the hands of a photo finisher), while preserving the purpose and potential of copyright law. It would not inject orphan works prematurely into the public domain, create an automatic exception for all uses, or create a permanent class of orphan works. Nor would it minimize the value of any one orphan work by mandating a government license and statutory rate.

Some critics believe that the legislation is unfair because it will deprive copyright owners of injunctive relief, statutory damages, and actual damages. I do not agree. First, all of these remedies will remain available (to the extent they apply in the first place) if the copyright owner exists and is findable. Second, the legislation will not limit injunctive relief, except in instances where the user has invested significant new authorship and, in doing so, has relied in good faith on the absence of the owner. Third, statutory damages, which are available only when a work has been timely registered, will usually not apply at all because the overwhelming majority of orphan works are not registered by owners but languishing in institutions and private collections. Fourth, one of the basic tenets of the legislation is that the available remedy will be proportionate to the nature of the infringement. Reasonable compensation, a standard derived from a leading case on copyright damages, will usually be within the range an owner could expect to recover in an ordinary infringement suit. And it should certainly reflect a reasonable license fee. The Association of American Publishers put it this way: “In those cases where an owner does surface, the point is to put the owner and user to the greatest extent possible, in the respective positions they would have occupied in an ordinary marketplace negotiation at the time of use.”

In my view, a solution to the orphan works problem is overdue and the pending legislation is both fair and responsible.


Marybeth Peters
Register of Copyrights

Last edited by GaryML; 10-06-2008 at 09:27 AM.
10-06-2008, 09:24 AM   #21
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QuoteQuote:
On the other hand, there are orphan works where the owner cannot be located or has ceased to exist (through death, corporate dissolution, etc.). It would be unfortunate if historically important images and text could not be reproduced for the benefit of posterity simply because the owner died and no heirs can be found. Imagine that you are writing a history of the Civil War, or the 1906 San Francisco Earthquake, and you discover some great photos in a library archive somewhere. The photographer is long dead and there is absolutely no way to determine of any heirs or anyone else has retained any rights to these images. Should the images be lost forever because of this? What if 150 years from now or even 50 years from now someone would like to use one of your images to show what life was like in the 21st Century. Would you want to prevent this and have your images thrown away, simply because you are dead and your heirs have long forgotten you existed?
That is irrelevant because this bill sets no time limit. You may take an orphan photo today and not even know it.

QuoteQuote:
Here is the official summary of the bill, and an excerpt from the abstract:

U.S. Copyright Office - Orphan Works

An excerpt from the abstract:

The legislation is sensible: it would ease the orphan problem by reducing, but not eliminating, the exposure of good faith users. But there are clear conditions designed to protect copyright owners. A user must take all reasonable steps, employ all reasonable technology, and execute the applicable search practices to be submitted to the Copyright Office by authors, associations, and other experts. The user must meet other hurdles, including attaching an orphan symbol to the use, to increase transparency and the possibility that an owner may emerge. If an owner does emerge, the user must pay “reasonable compensation” or face full liability. Reasonable compensation will be mutually agreed by the owner and the user or, failing that, be decided by a court; but it must also reflect objective market values for the work and the use. This framework would facilitate projects that are global (think rare text in the hands of a book publisher) as well as local (think family portraits in the hands of a photo finisher), while preserving the purpose and potential of copyright law. It would not inject orphan works prematurely into the public domain, create an automatic exception for all uses, or create a permanent class of orphan works. Nor would it minimize the value of any one orphan work by mandating a government license and statutory rate.

Some critics believe that the legislation is unfair because it will deprive copyright owners of injunctive relief, statutory damages, and actual damages. I do not agree. First, all of these remedies will remain available (to the extent they apply in the first place) if the copyright owner exists and is findable. Second, the legislation will not limit injunctive relief, except in instances where the user has invested significant new authorship and, in doing so, has relied in good faith on the absence of the owner. Third, statutory damages, which are available only when a work has been timely registered, will usually not apply at all because the overwhelming majority of orphan works are not registered by owners but languishing in institutions and private collections. Fourth, one of the basic tenets of the legislation is that the available remedy will be proportionate to the nature of the infringement. Reasonable compensation, a standard derived from a leading case on copyright damages, will usually be within the range an owner could expect to recover in an ordinary infringement suit. And it should certainly reflect a reasonable license fee. The Association of American Publishers put it this way: “In those cases where an owner does surface, the point is to put the owner and user to the greatest extent possible, in the respective positions they would have occupied in an ordinary marketplace negotiation at the time of use.”

In my view, a solution to the orphan works problem is overdue and the pending legislation is both fair and responsible.


Marybeth Peters
Register of Copyrights
Official?
That is biased because this bill intends to rip off regular people and give more power to institutionalized copyright like the US copyright regime: U.S. Copyright Office
10-06-2008, 09:33 AM   #22
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Damnit - I say it's about time we put those orphans to work! I'm tired of all those stupid socialistic programs we have to pay for, like taking care of orphans.


Yes, I know I have a perverse sense of humor!

10-06-2008, 11:45 AM   #23
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Gary,

I have two main problems with the legislation as is

1. the abundant use of the term "reasonable." They have not, to my knowledge, published their "statement of best practices" (para 2,B,i). "Reasonableness" is a very subjective term that, if left up to a court of law, will vary as widely as any other legal proceeding. Two virtually identical but separate cases in two separate court rooms heard by two separate judges will produce two distinctly different outcomes.

2. It places copyright registration into "private databases" in the hands of one or more yet to be determined commercial entities. This introduces PROFIT to the process.

I agree that there is an "orphan work" problem but this legislation is not IMHO an effective and proportional answer to that problem. You reference works of substantial historical value. Well, if that is the main intent of the legislation it should be narrowly focused on that target.

As written the legislation allows virtually anyone to use any presumed orphan work for any purpose after conducting their 'reasonable" search for the owner.

I believe they need to refine and add a step to their process, that of weighing the "public good" served by use of the presumed "orphan work." After the requestor has made their reasonable search there should be a process in place for government employees (not contractors) vetting the significance and benefits of publishing the work as an orphan. If a significant "public good" would be served by the publication of the image in question, then the copyright office could issue a provisional use "license" for the image and limit the compensation to any claimants who might surface after the fact.

You'll likely counter that this is just more bureaucracy, and you would be right, but that is nothing new. Most importantly, it would stop use for purely commercial benefit to the requestor.
10-06-2008, 11:59 AM   #24
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QuoteOriginally posted by stevebrot Quote
I think you are thinking of the OTHER Vancouver. I lived in the place up north in the early '80s, but now live in Vancouver, USA. The names are the same, but the places quite different.

I actually have a pretty laid back attitude regarding copyright, though I don't like the idea of some robot harvesting images on the Web and then providing them for sale from a stock catalog after a half-hearted effort to contact the owner. That is just wrong.

Steve
Aye, sorry.

But remember, folks - if something like your photos aren't generating profit, that's basically like stealing from someone else who does make profit from photos!
10-06-2008, 04:51 PM   #25
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QuoteOriginally posted by MRRiley Quote

I have two main problems with the legislation as is

1. the abundant use of the term "reasonable." They have not, to my knowledge, published their "statement of best practices" (para 2,B,i). "Reasonableness" is a very subjective term that, if left up to a court of law, will vary as widely as any other legal proceeding. Two virtually identical but separate cases in two separate court rooms heard by two separate judges will produce two distinctly different outcomes.
Actually, this is exactly what you want. The law is full of "reasonable person" standards and there is a large body of cases interpreting the standard in various circumstances. It is not "subjective" at all, but requires that the trier of fact consider what the average reasonable person would (or should) do in such a case. The advantage is that it allows the standard to evolve as new ways emerge of finding people. For example, using a Google search is what a reasonable person would do today, but it was unheard of 20 years ago.

With ANY case, two different judges or juries may produce different results. That is the nature of our legal system.

QuoteOriginally posted by MRRiley Quote

2. It places copyright registration into "private databases" in the hands of one or more yet to be determined commercial entities. This introduces PROFIT to the process.

I agree that there is an "orphan work" problem but this legislation is not IMHO an effective and proportional answer to that problem. You reference works of substantial historical value. Well, if that is the main intent of the legislation it should be narrowly focused on that target.

As written the legislation allows virtually anyone to use any presumed orphan work for any purpose after conducting their 'reasonable" search for the owner.

I believe they need to refine and add a step to their process, that of weighing the "public good" served by use of the presumed "orphan work." After the requestor has made their reasonable search there should be a process in place for government employees (not contractors) vetting the significance and benefits of publishing the work as an orphan. If a significant "public good" would be served by the publication of the image in question, then the copyright office could issue a provisional use "license" for the image and limit the compensation to any claimants who might surface after the fact.

You'll likely counter that this is just more bureaucracy, and you would be right, but that is nothing new. Most importantly, it would stop use for purely commercial benefit to the requestor.
I certainly wasn't saying the bill, as written, was perfect. And I distrust anything remotely associated with Orrin Hatch.

I wanted to make the point that there is a real problem with orphaned and abandoned works in lots of areas, from photos to books to music to computer programs. I think that works of this sort which are truly abandoned should be in the public domain. No one else in the thread even acknowledged the problem to be addressed.

Ms. Peters explicitly denies that a private registration is necessarily a part of this scheme. I don't know whether this is true or not. I personally think that a free (or modest fee) public registration is more appropriate. I'm not keen at all on "privatizing" governmental regulation.

I also agree that weighing of benefit versus harm should be a factor, but arguably that is part of a reasonableness standard.

To me, the biggest drawback is the requirement to file a legal action to resolve a dispute. Litigation is expensive, and it simply isn't cost-effective to file a suit where the damages are minimal. Stock photos can be used for just a few bucks, or sometimes as little as $0.25. Who is going to file a lawsuit to collect $0.25? It would be better to have a government agency conduct a fast and cheap hearing and issue a ruling. This would be more useful for nickel and dime cases. Having the right to appeal the administrative ruling for de novo review in Federal District Court would be useful in bigger cases.

Last edited by GaryML; 10-06-2008 at 08:13 PM.
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