Whoops! Is that your copyright?
“Sorry! I didn’t know it belonged to anyone.” It’s the sort of excuse you hear when you catch a thief making off with your mobile after turning your back on it for a second. It’s also the rationale behind proposed US legislation that could make it easier for companies to steal images, words and other work by claiming they do not know who the creator is.
In 2006, US editorial photographers rose in a mass protest against a similar proposal that, if successful, would appear to have allowed almost unfettered use of copyright material by anybody who said they could not locate the creator. Magazines and newspapers in the UK routinely publish images and stories without bylines and the internet teems with uncredited material, so one can see the potential for exploitation by the unscrupulous.
The 2006 bill was kicked into touch and the creative world heaved a sigh of relief. So what is all the fuss about now? Some organisations like colleges, libraries and museums have said they want to be able to make available what are termed “orphan” works to researchers and students — orphan because they have no owner or guardian.
For most uses that these organisation are concerned with they can already use this material under “fair use” provisions in US copyright law. But they want more. They want protection from copyright infringement lawsuits and say that this is a reasonable request. New legislation is planned to provide this protection. The problem is that its effects could extend far beyond museums preserving out-of-print books or old photographs.
We could find provisions designed to benefit museums and libraries allowing commercial use of allegedly orphaned works by publishers and manufacturers. Few media organisations, for instance, will pay for or commission new work when potentially orphaned images are there for free.
The proposed legislation (The Shawn Bentley Orphan Works Bill) only requires the user/infringer to pay for, say, an orphan image if the creator comes forward and demands the money. And the user is only required to cough up what they regard as reasonable. (Try that one in Sainsbury’s!). “Non-profit” companies would not have to pay at all, even if they turn over millions or billions of dollars.
Orphans legislation is not about solving a problem that creators have. It is solely about allowing users access to copyright work for free.
The NUJ has backed US creators’ organisations calling for lawmakers to reject the Bill. General Secretary Jeremy Dear said the proposed legislation would create the perception of a free-for-all. “This will 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.”
- Pete Jenkins represent the Midlands on NUJ’s Freelance Industrial Council