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Craig Murphy

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Orphan Works Bill
« on: May 09, 2008, 09:36:23 am »

With all the forum activity going on right now about this bill there has not been one single peep here on LL.  How come?
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CMurph

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Orphan Works Bill
« Reply #1 on: May 09, 2008, 10:18:26 am »

It hasn't been brought up.

Got a link?
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peterpix2008

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Orphan Works Bill
« Reply #2 on: May 09, 2008, 11:44:00 am »

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[span style='color:blue']Peter Randall[/span]

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Craig Murphy

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« Reply #3 on: May 09, 2008, 11:44:14 am »

This is John's Harrington's blog.  One of the places to look.   http://photobusinessforum.blogspot.com/
Another is over on Rob Haggarts's blog. http://aphotoeditor.com/

ASMP has links. APA has links.  These organizations have different views on this.  ASMP and the PPA are supporting the House version.   APA is against it.
« Last Edit: May 09, 2008, 11:58:00 am by Craig Murphy »
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peterpix2008

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« Reply #4 on: May 09, 2008, 01:27:30 pm »

Here's what ASMP sent out today, but not sure what their point is. I'm not a member:

Dear Member of ASMP,

Please do not write to your Congressmen now. It will hurt our cause.

I completely understand that the Orphan Works situation is very confusing. Please do not buy into the hysteria that you are hearing. You have people and organizations that you have trusted for years giving you mixed messages. There have been some terrible accusations about ASMP on forums and blogs. I assure you that we are working at the table to make these versions of this bill as good as we can. We are working to influence changes that can greatly effect the final versions. If everyone bombards their Congressmen with messages of “vote no,” it damages what we are working to achieve.

There may be a time when we do want you to contact them with a specific message, but now is not the time.

Please do not write to your Congressmen. Thank you for your understanding.

Todd Joyce ASMP President


  Peter Randall
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Rob C

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« Reply #5 on: May 12, 2008, 04:31:17 am »

Seems like a great idea to legalise rip-off... then, you don´t have to pursue pirates through the courts and can spend more resources castigating men in divorce settlements. Or for illegal parking.

Great legal thinking; makes life easier all around. Artists? What artists?

Rob C

wlong

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« Reply #6 on: May 16, 2008, 02:15:47 am »

What Australia Institute of Professional Photography are doing.

Its now becoming vitally important to understand why all of your images should make sure that no images leave your cameras or studio or office or house, without having the meta data fields completed, with the very minimum of contact, copyright and usage information.

William Long
M. Photog II, MNZIPP, FBIPP, FRPS, FBPPA, FSWPP
Longshots Photography


And what the AIPP (Australian Institute of Professional Photography) are doing about this (copied with permission of AIPP National President):

From Jackie Dean, AIPP National President

Please see below a letter I have sent to Ambassador Susan Schwab on behalf of the AIPP.  The letter relates to the U.S. Orphan Works Bills that are currently before the House and the Senate in the USA.
 
These Bills would amend United States Copyright Law.  In brief, the proposed amendment would define an Orphan Work as any copyrighted work whose author any infringer says he is unable to locate by means of a reasonably diligent search.
 
The ramifications for all owners of copyrighted work which clearly applies to photographers are appalling.
 
If this Act is passed in the USA it will undoubtedly affect the rights of photographers worldwide.  I urge you all to consider spending a few moments of your time and to contact Ambassador Susan Schwab and the other three contacts that are shown on the attached list to express your concerns about the proposed Amendments to the Copyright Act.
 
Please send copies of your letter to:-

Ambassador Susan C. Schwab
Office of the United States Trade Representative
600 17th Street, N.W.
Washington, DC 20508
United States of America
FAX: 001 (202) 395-4549
(Telephone: (202) 395-3000)

Marybeth Peters
Register of Copyrights
U.S. Copyright Office
101 Independence Ave. S.E.
Washington, D.C. 20559-6000
United States of America
FAX: 001 (202) 707-8366
(Telephone: (202) 707-5959)

Jon W. Dudas
Director
United States Patent & Trademark Office
P.O. 1450
Alexandria, VA 22313-1450
United States of America
FAX: 001 (571) 273-8300
Telephone: (800) 786-9199)

Reuben Jeffrey III
Under Secretary for Economic, Energy and Agricultural Affairs
U.S. Department of State
2201 C Street NW
Washington, DC 20520
United States of America
FAX: 001 (202) 647-9763
(Telephone: (202) 647-7575)

http://www.aipp.com.au/UserFiles/file/ENEW...usanCSchwab.pdf


Ambassador Susan C. Schwab
14th May 2008

Office of the United States
Trade Representative 600 17th Street,
N.W. Washington, DC 20508 United States of America

Dear Ambassador

I'm writing to urge you to oppose the U.S. Orphan Works Bills, H.R. 5889 and S. 2913, introduced into the House and Senate on April 24, 2008. These bills would amend Chapter 5 of Title 17, United States Code, (Copyright law) by adding “§ 514. Limitation on remedies in cases involving orphan works.” This new limitation on remedies will be imposed on any copyrighted work wherever the infringer can successfully claim an orphan works defense, whether legitimate or adjudicated by courts to be conclusive.

The Orphan Works Act defines an “orphan work” as any copyrighted work whose author any infringer says he is unable to locate by means of a “reasonably diligent search.” The infringer himself will be allowed to determine when he has met this imprecise test. The infringer would be free to ignore the rights of the author and use the work for any purpose, including commercial usage. This is a radical departure from existing international copyright law and conventions, as well as normal business practices.

These bills will have a disproportionate impact on visual artists because pictures are commonly published without credit lines or because credit lines can be removed by others. This is especially true of art published in the Internet Age. And since unmarked pictures cannot be sourced or dated, works by artists like me – who live and work outside the U.S. - will be just as vulnerable to infringement as the work of American artists.

Because visual art is so vulnerable to orphaning, there is only one way to match an unmarked image to its author: by relying on image-recognition databases. The Copyright Office has stated that with the passage of these bills, such registries will be “indispensable,” and they have stipulated that the registries must be created in the private sector and run as commercial, for-profit ventures.

Forcing artists to rely on any form of registry to protect their work is a violation of the Berne Convention for the Protection of Literary and Artistic Works. This law forbids any member country to impose registration on a rights holder as as a condition of protecting his copyright. See Berne. Article 5(2) “The enjoyment and the exercise of these rights shall not be subject to any formality.” But forcing international artists to rely on commercial registries in order to to protect their work from infringement - made legal by a law unique to the United States - is deeply troubling.

There are many reasons why international law forbids coerced registration. Before such registries can be meaningful, all the billions of images currently protected by copyright must first be entered into them with authorship information intact. That means that millions of pictures from around the world which go unmatched will be orphaned, even if the artists are alive, working and managing their copyrights. This would even be true of images registered in the databases, but which go unmatched because of computer errors.

There is no limit on the number of these registries or the prices they would charge. The burden of paying for digitization and depositing the digitized copy with the private registry would fall entirely on the artists. Most professional artists have created thousands – or tens of thousands - of drawings, sketches, photos and paintings. This includes both published and unpublished work. The costs of paying to have all these works digitized and registered would be beyond their ability. Yet the Copyright Office has stated explicitly that failure of the artist to meet this nightmarish bureaucratic burden would result in his work being automatically “orphaned” and subject to legal infringement.

Presumably the Copyright Office and Congress expects non U.S. artist like me to register all their past and future art with the new hypothetical U.S. databases, or see my work exposed to commercial infringement under U.S. law.

These bills will create massive uncertainty in the markets where visual art is bought, sold and licensed. It will do this by voiding entirely the exclusive rights of every visual artist whose work any infringer can lay claim to. Reason: I would be powerless to stop the unauthorized uses of my art, even in cases where I would never, or could never, permit those uses. Besides seeing my work used in objectionable or defamatory ways, this will void existing contracts already in force between me and my clients. This is an attack on the principle of art itself, because my exclusive right of copyright is the only tool I have to assert creative control over my work and to protect its value in the marketplace.

The U.S. is a member country of the Agreement on Trade-Related Aspects of Intellectual Property (The TRIPs Agreement). Article 13 of this copyright-related treaty allows certain “limitations and exceptions” to an artist’s exclusive right of copyright. These are codified as a Three-Step Test:“ Member [countries] shall confine limitations and exceptions to exclusive rights to: (1) certain special cases (2) which do not conflict with a normal exploitation of the work (3) and do not unreasonably prejudice the legitimate interests of the rights holder.

The Orphan Works Bills of 2008 have been written so broadly that their use cannot be confined to true orphaned work. These bills will violate the Berne Copyright Convention and fail the Three-Step Test of TRIPs. Any Orphan Works solution should precisely define an orphan work as a copyright no longer managed by a rights holder, and be limited to uses in the cultural heritage sector for noncommercial purposes, or use by museums and libraries for preservation and education.

Yours sincerely,

Jackie Dean M.Photog.ll, FAIPP
AIPP National President


PS My apologies if I've posted this in the wrong area
« Last Edit: May 16, 2008, 03:47:11 am by wlong »
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Rob C

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« Reply #7 on: May 17, 2008, 04:20:41 am »

One has to wonder where lies the power structure that prompted the proposed Act.

It would seem to me that what is happening here is that, for the first time (as far as I can see), we are getting into a situation where the opposite of the concept of innocent until proven guilty is becoming close to being accepted. By statute as against by negligence or political bending of the existing laws of the land.

In reality, the only people that I can see benefitting from the Act would be those who have an urge to use an image without paying for it, relying on the simple cop-out that their ignorance of authorship  somehow bestows upon them the right to use that image.

Would it not make for a more fair law if the rights of the author were protected under all circumstance and that no picture might be used without prior permission and that, where no such permission is available, the picture must never be used? All that would happen is that some commercial venture would have to look elsewhere, even possibly hire a photographer to MAKE an image! I would extend that concept beyond commercial users too, of course, as nobody has the right to use somebody elses work without permission.

So simple. really, that one wonders why the law-makers might have a problem understanding the concept of theft by stealth; after all, the taxman does that every day.

EDIT: I would say that in reality, this proposed Act would have a far greater effect upon the photographic world than even the advent of digital. After all, digital is just technique, a means to the same end, but theft strikes at the very foundation of the end product, its ownership.

Rob C
« Last Edit: May 17, 2008, 04:45:39 am by Rob C »
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wlong

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« Reply #8 on: May 18, 2008, 06:34:31 pm »

Quote
Here's what ASMP sent out today, but not sure what their point is. I'm not a member:

Dear Member of ASMP,

Please do not write to your Congressmen now. It will hurt our cause.


Todd Joyce ASMP President
  Peter Randall
[a href=\"index.php?act=findpost&pid=194651\"][{POST_SNAPBACK}][/a]

Firstly, ASMP are just one of many organisations in the US representing a number of American photographers.  There are many photographers and professional associations all around the world may be affected by this bill. Asking people not to write to air their personal or organisations views is in my opinion quite confusing.


Importantly ASMPs position would appear to have changed.  This is off the ASMP web site yesterday (18th May 08):

ASMP's (American Society of Media Photographers) position:

all to Action on Orphan Works: ASMP urges you to contact your Senator in opposition to S.2913, the Senate version of the Orphan Works bill. Now is the time. We continue to support the House version, H.R. 5889.

oh and for the record - I also researched other US photog associations and there responses are below:

APA's (Advertising Photographers of America) position:

ORPHAN WORKS LEGISLATION IS BACK!

APA’s Position on the Orphan Works Act of 2008
>From the onset, APA has been actively engaged in the effort to help solve the orphan works dilemma. We made public our support for the crafting of an amendment that would permit use of verified, i.e. true, orphaned works for certain uses, by way of procedures that are clearly defined in the statute or regulations, while retaining remedies for use by copyright owners in the event of abuse.

APA, in seeking to represent the best interests of its members, takes the position that the legislation offered in both bills -- S.2913 and H.R.5889 -- does not achieve the goal as we believe was originally intended, and instead provides a distinct road map for the infringement of contemporary works by living artists worldwide. If left unchanged, this legislation has the potential to destroy the businesses and livelihoods of thousands of photographers, other visual artists, as well as the collateral small businesses that serve the industry, and are dependent on, creators.

Therefore, APA is asking its members and all concerned individuals to take action by writing your members of Congress to voice your concerns. PLEASE go to this resource page on Orphan Works   for sample letters (scroll down for the photographers’ letters) and the ability to automatically contact your specific members of Congress. Great thanks to the Illustrators’ Partnership for making this site available.


NPPA's (National Press Photographers Association) position:

DURHAM, NC (May 7, 2008) – Today the National Press Photographers Association sent a letter to Congressman Howard L. Berman (D-CA) , chairman of the House Committee on the Judiciary, stating NPPA's objections to the "Orphan Works Act of 2008" (H.R. 5889).

"We cannot in good conscience support this bill," NPPA president Tony Overman wrote to Berman.

Overman urges photojournalists who oppose the bill to immediately write to their representatives.

The Illustrators Partnership of America has an online letter generator that can be used to send your Congressional leaders a note of objection about the two current orphan works bills. IPA has customized an individual letter for NPPA members and photojournaists to use, and it is online here.

An "orphan work" is a photograph or illustration that is protected by copyright but whose copyright owner cannot be identified or located.

"We recognize well the difficulties of managing rights for historical images. We believe a carefully and narrowly tailored expansion of the fair use exception to the copyright act would address the legitimate concerns of librarians, historians and educators," a statement from NPPA to the membership said.

"There is no reasonable argument to authorize infringements for commercial use. Unpublished works should also not be exempted – especially since publishing them without their creator’s permission might violate contract, privacy and other legal precepts. If the sharing of historical works is the true goal of orphan works legislation, there is certainly no reason at all to extend infringement exemptions to newly created works."

In Overman's letter to Berman he wrote, "Therefore, on behalf of our board and 10,000 photojournalists, students and editors throughout the country, I urge you to consider the significant economic and artistic harm this draft legislation could cause and amend it so that it: minimizes potential abuse; balances the needs of those who legitimately seek orphan works exemptions; and offers greater protection those who seek to protect their copyrights."

In April 2007 a pair of orphan works bills appeared before Congress. Both are on a “fast track” for approval during this session and a mark-up of the House bill that NPPA objects to took place May 7. The bills would exempt from full protection under U.S. Copyright law millions of pictures – new and old, published and unpublished, even many previously registered with the U.S. Copyright Office.

Both the Orphan Works Act of 2008, the title of the House bill, and the Senate’s Shawn Bentley Orphan Works Act of 2008 (S. 2913) would effectively allow photographs and other created works to be used without prior permission if the actual copyright holder could not be identified or located.

Under the proposals, the copyright holder could not collect statutory damages or attorney fees from an unauthorized user, so long as that user conducted a “reasonable search” to find the copyright holder and obtain permission.

NPPA believes that the bills could imperil creators of original work, including most NPPA members. The organization's views will be shared in an eMail message to all members.
« Last Edit: May 18, 2008, 06:36:00 pm by wlong »
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jjj

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« Reply #9 on: May 19, 2008, 07:43:04 am »

This brilliant little tool will shaft the idiots trying to get bill passed.

http://www.tineye.com/

   
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lightstand

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Orphan Works Bill
« Reply #10 on: May 20, 2008, 04:30:51 pm »

Quote
This brilliant little tool will shaft the idiots trying to get bill passed.

http://www.tineye.com/

  
[{POST_SNAPBACK}][/a]

Let's not fool ourselves once this bill passes the law will be on the side of Google for image theft and then it will be David verses Goliath & his other brother Goliath.

I'm reposting this link:  [a href=\"http://capwiz.com/illustratorspartnership/home/]http://capwiz.com/illustratorspartnership/home/[/url]
I believe it's very important for all US creatives to send their Senators letters TODAY & TOMORROW!!!
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jjj

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« Reply #11 on: May 21, 2008, 08:01:01 am »

Quote
Let's not fool ourselves once this bill passes the law will be on the side of Google for image theft and then it will be David verses Goliath & his other brother Goliath.
[a href=\"index.php?act=findpost&pid=196851\"][{POST_SNAPBACK}][/a]
But, if the tineye is as good as it suggests, all you have to do is post a non flash low res or even watermarked gallery of your images with contact/copyright details and by using tineye your info should therefore be easily found.
So, if we can make people use an effective image engine, before declaring an image orphaned, then they will find it hard to say it is indeed orphaned. I have a feeling this bill is going to be rammed through no matter what, but if there is indeed an effective image search engine, then it may render the stupid bill worthless.
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Rob C

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« Reply #12 on: May 21, 2008, 12:51:25 pm »

Quote
But, if the tineye is as good as it suggests, all you have to do is post a non flash low res or even watermarked gallery of your images with contact/copyright details and by using tineye your info should therefore be easily found.
So, if we can make people use an effective image engine, before declaring an image orphaned, then they will find it hard to say it is indeed orphaned. I have a feeling this bill is going to be rammed through no matter what, but if there is indeed an effective image search engine, then it may render the stupid bill worthless.
[a href=\"index.php?act=findpost&pid=196988\"][{POST_SNAPBACK}][/a]


jjj

Yes, but if I read the original post correctly, it might appear that all a pirate needs to do is claim that HE couldn´t find the author. Thus, regarless of whether a widely known route to the information exists or not, the pirate can claim the defence of ignorance, something which might be the thin end of God knows what within the legal systems so closely associated with the US model.

But regardles, the basic fault that I see with the proposed Act is that it forces an author to take action when that is putting the cart before the bloody horse: so simple, really, if you can´t find the author that should mean you can´t find permission and tough luck to you. Why should anyone just be free to go pick the fruit off somebody else´s trees? The old sticker Home Security by Smith and Wesson never read more attractively.

Rob C

jjj

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« Reply #13 on: May 21, 2008, 04:35:50 pm »

Quote
Yes, but if I read the original post correctly, it might appear that all a pirate needs to do is claim that HE couldn´t find the author. Thus, regarless of whether a widely known route to the information exists or not, the pirate can claim the defence of ignorance, something which might be the thin end of God knows what within the legal systems so closely associated with the US model.
Ah but this tool may now make that claim a lot more difficult to make. The fact that claiming ignorance is being made legally acceptable is astonishing.


Quote
But regardles, the basic fault that I see with the proposed Act is that it forces an author to take action when that is putting the cart before the bloody horse: so simple, really, if you can´t find the author that should mean you can´t find permission and tough luck to you. Why should anyone just be free to go pick the fruit off somebody else´s trees? The old sticker Home Security by Smith and Wesson never read more attractively.
[a href=\"index.php?act=findpost&pid=197052\"][{POST_SNAPBACK}][/a]
If you cannot ID author, then it's not yours, should be the law. The Orphan Works' bill is simply a thieve's charter. It may well come to epitomise corporate greed and bullying.
I still find it amazing that it's was even contemplated, let alone get as far as being pushed through government.  If anything illustrates, the sheer awfulness and corruption of lobbying, this does.
Democracy has such an obvious a price tag in the US, I'm surprised that haven't simply gone and put it on eBay!
« Last Edit: May 21, 2008, 04:36:46 pm by jjj »
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