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NUJ condemns "free for all" US Orphan Works legislation

25 May 2008 - EPUK

The National Union of Journalists (NUJ) has become the first UK organisation representing photographers to publicly oppose the proposed US ‘Orphan Works’ legislation, saying it “utterly rejects” the bills currently going through the House and Senate.

In a statement, NUJ General Secretary Jeremy Dear said “I urge all Senators and House members to oppose these Bills, because passing them would undermine the creativity that is so important to the economy of the United States and of its allies.”

The proposed bill seeks to limit the liability of those who publish so-called ‘orphan works’ – copyrighted material where the copyright holder is unknown or untraceable by the would-be publisher. The nature of such material and the ready availability of uncredited material on the internet means it will inevitably affect any copyright holders outside the US, including photographers.

The NUJ statement says the proposed legislation “creates the perception of a free-for-all”, adding that it would “encourage scams and rip-offs of authors, who will be left with no recourse unless they can raise many tens of thousands of dollars to fund pursuing abuses of their works through the civil courts”.

‘Free for use’ copyright pictures

The current proposals – called the Shawn Bentley Orphan Works Bill in the Senate, and the Orphan Works Bill 2008 in the House of Representatives – would make any such ‘orphans’ effectively free for use, provided the publisher had registered in advance a ‘reasonably diligent’ attempt to try to trace the copyright holder.

While publishers would be required to pay ‘reasonable compensation in a reasonably timely manner’ to the author or photographer if they became known, the only legal recourse to the copyright holder if publishers failed to do so would be to raise a court action in the US, which would be both impractical and disproportionally expensive for the vast majority of infringements.

The debate surrounding US orphan works legislation has acrimoniously divided US photographers’ organisations, with the American Society of Media Photographers (ASMP) and the Professional Photographers of America (PPA) coming out broadly in favour of current legislation. However, online debate suggests that many members are unhappy with the stance taken by their representative organisations.

EU likely to introduce ‘orphans’ exemptions

While the statement is likely to have little practical effect on the passage of either US bill, it sets out the NUJ’s position in advance of similar copyright exemptions being floated in the EU.

In the UK, the 2006 Gowers Review of Intellectual Property recommended making a similar provision to the European Commission to allow the copying and publishing of orphan works under certain circumstances. At the time, the NUJ made a submission that any such use should include a ‘token payment’ to be held in trust, to be passed to the copyright holder should their identity subsequently become known.

The most recent statement suggests several additional points to safeguard the rights of copyright holders. These include the publisher paying the commercial value of the specific use in advance, to be reviewed if the original copyright holder becomes known, and that the introduction of the law be delayed until authors worldwide have “inalienable moral rights” to be identified alongside publication or reproduction of their work.

Jeremy Dear says: “NUJ members’ work is used all over the world, as is the work of US writers and photographers. They deserve – and they have in law – the right to fair pay for every use. We need international solutions, that respect international law.”

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I can’t disagree more strongly with your position. A free society depends upon freely available works. Under this legislation, copyright holders would still be paid, and public domain works would become available to everyone.

Comment 1: Scott Mercer, 26 May 2008, 01:07 pm

Dear Mr. Mercer et al: Clearly, you don’t hold copyright to anything yourself. Just as the corporations who would like to rip off our work don’t hold copyright to it now, but would like to in the future. “Copyright holders would still be paid” is true, if one makes allowance for the fact that the artist or writer would have to fund the legal action themselves, and would wind up getting “a reasonable fee” from the court for the piracy of their legal opponent-a fee which would not include legal fees or court costs. It would be a Re-Use fee. Period. My work is mine to profit from, Mr. Mercer, not yours or Google’s, or Yahoo’s, or Getty Images’. Those corporations are the ones with whom you have thrown in your lot, and you clearly couldn’t care less about anyone but yourself.

Comment 2: Birck Cox, 26 May 2008, 08:11 pm

Also not considered is that as the creator we will lose the right to choose what our work will be used for.

If we find our work used to promote a distasteful product or service the best we can hope for is that vague “reasonable fee” less legal funds.

As an artist who licenses work I fear that this lack of control over use of images will make a large negative impact on the licensing industry.

Comment 3: SM Vioalno, 9 June 2008, 07:06 pm

your_ip_is_blacklisted_by sbl.spamhaus.org

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