Note: I'm probably going to be editing this entry a lot as I A) learn more and B) think of more to add. Be on the lookout! I already took out most of my kneejerk reaction to the article.
Also, I know that there are a bunch of people going around saying that this legislation is old, or not happening. It is true that this issue was brought up in 2006, but this is a new proposal for 2008. Anyone who says this isn't happening needs to do a little more googling. The Orphan Works Proposal that was published on March 13th, 2008 is the first result of a search for "Orphan Works Legislation". You can also watch the webcast if you have an hour and a half to spare.
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Discussion of the Orphan Works Proposal of 2008
Yesterday, multiple postings of the scare article You Will Lose All The Rights to Your Own Art by Mark Simon, made us pick up our pitchforks and rage against the machine. The article, however, is a big alarmist piece made to get you angry. If you're angry, please calm down. The picture painted in the article is a frightening one, but inaccurate. While there is an Orphan Works Proposal out, it is not out there to take away your rights. It does, however, have some holes and wiggle space that should alarm you.
On March 13th, 2008, the House Subcommittee on Courts, the Internet and Intellectual Property held a hearing to discuss the issue of Orphan Works. There, Marybeth Peters of the Copyright Offices put for the an Orphan Works proposal.
First of all, an orphan work is a copyrighted work where it is difficult or impossible to contact the copyright holder. The Copyright Offices feel that orphan works are a problem. Their arguments are that people are having trouble retouching old family photos because they do not have the permission of the person who took them. I've heard of these situations as well as similar ones with artists having trouble getting prints made even if they are the actual rights holder. This is a legitimate complaint. They also mention museums, archives, documentaries, etc and so forth running into trouble when wanting to include orphaned photos, family letters, or movie and sound clips in their works. They are simply unable to for fear of copyright infringement and thus such works can subsequently fade from view before they ever enter the Public Domain. Again, a legitimate complaint.
Their argument is that people should be able to use orphaned works if, after a "diligent, good faith search," the copyright holder cannot be found. They explain that if owners of orphaned works surface, the user of said works should provide reasonable compensation. They will have a protective zone for those not making profits from these works such as museums, archives and the like. They mention that they would like to remove statutory damages because they can only be collected within a certain frame of registration (if the work has been registered or if it's been registered 3 months since the infringement took place) and because there are so many exceptions that it seems clumsy and useless. They say "If the copyright owner is not identifiable and cannot be located through a diligent, good faith search, we believe the appropriate recovery is reasonable compensation. If orphan works legislation does not remove statutory damages from the equation, it will not motivate users to go forward with important, productive uses."
We next discuss the “Role of Best Practices". This means that while searching for the copyright owner, you should search in the appropriate place. For example, if you wish to hunt down a sound clip owner, you should search a sound database and not a photography database. Or more practically, here is their example. "For example, it makes no sense to require a user to check an electronic database specializing in contemporary images of American photographers if what he is looking for is the owner of a 1930's photograph of German origin." So, their "best practices" is basically to search the proper place.
Here's where we introduce the role of technology. They say "We are aware of several private sector companies working on tools and services that could help alleviate the orphan works problem by matching users to owners. On December 8, 2007, the Copyright Office organized a briefing and showcase of technology for Congressional staff.4 At the briefing, companies highlighted image recognition, fingerprinting, watermarking, audio recognition and/or licensing features, and discussed their efforts to develop business models and standards, including database control, security, population fees, and allocation of user fees or subscriptions. We are confident that the marketplace offers, and will continue to offer, an array of databases and search technologies that will result in more choices for the copyright owner and more aids for the prospective user." Essentially, they are saying the development of search technologies in independent companies' hands. As you can see, they will most likely charge user fees or subscriptions. They also say that there will be no certification of said databases as they do not feel they are qualified to make them.
Now, we delve into this "diligent, good faith search." Anyone who wants to use an orphaned work will need to carry out this “diligent, good faith search.” This is where the proposed databases step in. One of the companies developing these search technologies is PicScout. They say, “Our technology can match images, or partial information of an image – such as a single face of one person in a crowd, with 99% success.” While amazing and wonderful, what of that 1% that is not successful? That 1% is a potential danger for separating you from your work. It might sound like a small percentage but considering the potential number of searches with a 1% chance of error every time, the numbers stack up. You must also consider that you are only in the 99% successful searches if you've registered all of your works with the service. Not registering with these services puts you at potential risk. This is where Mark Simon took the idea and ran with it. You are not required to sign up for these database services, but as you can see it would almost be artistic suicide not to do so.
Why the Copyright office be running such an orchestration? They claim that the should not. They say that it is impractical and feel that it would actually scare off people from registering their works with the Copyright office by the idea that it could become searchable on a database. They point out that registering with them is voluntary anyway and many choose not to register, so such an act would be futile. Therefore, they feel that it is best to leave such databases and technology to be developed by outside businesses.
Basically, the proposal is that people be able to use "orphaned works" after a "diligent, good faith search" does not turn up an owner. There is no firm definition of a “diligent good faith search” and furthermore the Copyright office will not be aiding int he construction of searchable databases. This will be left in independent companies hands. They will not be regulated and there is no guarantee that whoever you register with will be used in said "diligent, good faith search". This is where the "your rights will be erased" cry comes in. It is not that your rights will be erased, it is simply that people do not trust big business to have your best interests in mind. You are the little person and they will walk all over you....unless you pay them to show up on the radar. While it sounds like it could potentially be helpful in some areas, more realistically, it sounds like a protection racket. "Sure, we'll make sure they know who this belongs to, but only if you pay us."
Of course, not everyone is out to screw you. A searchable image matching database would be an awesome thing with the right intentions behind it, but this proposal is so freely worded that there's a lot of potential for corruption. Being as cynical as I am, it's easy to point out potential places for you to be walked over by big business. An unscrupulous business could easily exploit your works by claiming to have done a search for your “orphaned” work and using it anyway. They will only get in trouble if you find out. If you do find out, with statutory damages eliminated and no recompensation for court costs, it could make using so-called “orphaned works” that much more tempting. They only have to pay you if you find out, and even if you do they only have to provide “reasonable compensation.” People do crazy things with money involved.
While the article by Mark Simon is full of inflammatory alarmist crap, there's still plenty of truth mixed up in there. The guy basically took the idea that corporations and the government are out to screw people and cooked up a nice little conspiracy theory. It sounds horrifying and it's gotten us worked up, but it's only marginally truthful. I think that everyone should read the proposal for themselves and mull it over. It's always better to think for yourselves than just spout whatever paranoid buzzwords you read in one article without any of your own research to back it up.
For those of you in other countries thinking that this doesn't apply to you, WRONG! The European Union, is also looking into the orphan works problem. Not to mention, you'd have to go through the same song and dance if you wanted to do business in the states.
In conclusion, do research! Read up on this. Ask questions. Write letters. Don't just sit there and get worked up over one inflammatory article, get out there and find the truth.
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Required Reading Links:
Statement of Marybeth Peters. The Register of Copyrights before the Subcommittee on Courts, the Internet, and Intellectual Property, Committee on the Judiciary aka the Orphan Works Proposal
Illustrator's Partnership Orphan Works Resource Page for Artists
How Registries Will Orphan Your Work
Status of 2008 Orphan Works legislation
Last Edit: 4/12/08 4:28pm cst
For-Chan Cookie Community Member 
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