Prohibitively expensive registration

The cost of registering with the proposed registries is unknown, but photography is such a profligate medium that registration of more than a tiny minority of works is bound to be prohibitively expensive and practically impossible.

It seems clear that what is driving this legislation is a mix of idealistic free culture objectives aimed at minimising creators’ copyright, in conjunction with the massive financial potential of privatised registries and publishing of orphan works (some genuinely so) that could not previously be exploited.

A new Orphan Works bill has been on the cards since the 2006 version was stopped by protests led by the Illustrators Partnership. IP have been warning recently that a new bill was imminent, but the precise nature of the proposals was unclear until now. IP’s Brad Holland has published an audio interview detailing how the Bill affects every artist and photographer in the world. In the interview Holland says “‘It is not what it appears to be, it is a Trojan horse… Under this orphan works legislation, nothing you do would be protected unless it is registered with these commercial registries… they are orphaning all unregistered work’”

Tsunami of IP theft

It seems likely that if the Bill becomes law it will generate a veritable tsunami of IP theft. Any unregistered work, anywhere on the web could potentially be grabbed and registered by anyone who has done a cursory search and failed to identify the owner so able to claim it is an orphan.

The legitimate owner will then have to prove the work is theirs, issue a written notice, and either accept what the thief cares to pay or commence an expensive and risky infringement case in the US courts. For unregistered work, no significant damages will be available. This will simply be impossible for non-US-based photographers, and expensively futile for those who live in the US. In other words, the Bill is a thief’s charter.

To quote from the Copyright Clearance Center “Since this is an election year, and re-election campaigns will be in full swing by late summer, new orphan works legislation will probably be fast-tracked to reach the floor of the House by mid-May”. This gives photographers in the USA and worldwide a very brief window of opportunity, perhaps less than a month, to challenge the proposals.

EPUK’s sister site Copyright Action has published some further details and initial reaction at http://copyrightaction.com/forum/orphan-works-bills-introduced-in-usa

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