You know those poor orphans starving in the snow on your doorstep that Google wants to put to work for Corpocracy Inc? Well, the Brits are after them too. Parliament is considering an “enterprise regulatory reform” bill containing extremely permissive provisions concerning “orphan works.”
What is an “orphan work’? The definition is pretty clear: a copyrighted work (most often a book, story, or photograph) for which the “parent” — the author or copyright holder — cannot be located.
Finding a copyright is easy: the Copyright Office has it on file. Finding copyright holders (heirs who don’t know they’re heirs, etc.) can take time. It’s not always quick and easy to identify an orphan as such.
And here’s where the definition is vulnerable to deliberate manipulation and obfuscation. (I like that word, obfuscation — “making dark.”)
The operative term is cannot be located— which does not mean “hasn’t been found,” or “nobody bothered to look for.”
Increasingly often books are called “orphans” just because nobody is bothering to locate the copyright holder, or even make a copyright search. If stringent requirements for identification aren’t upheld, anyone who wants to exploit the rights to an older work can, after the most cursory search for the copyright holder or no search at all, just declare the book, the story, the photograph “orphaned.”
And if this practice isn’t questioned, they can go ahead without concern for copyright, reproducing and exploiting the so-called “orphan.”
It’s not an orphan at all. It’s been kidnapped.
By now kidnapped works probably far outnumber genuinely orphaned ones. The Google Book Settlement allowed Google to declare books orphaned with little or no pretense of search and then reproduce them busily, steadily, and no doubt profitably. The Internet makes it incredibly easy to do so. The U.S. Copyright Office has generally failed or refused to interfere, leaving the entire onus of proof that the work is protected by copyright to the individual author.
Now the Brits are trying to legalize this injustice — a dangerous precedent for decisions yet to be made in the U.S. And worse yet, if Parliament passes the bill, many American works published on both sides of the Atlantic will be misidentified as “orphaned,” scanned and put online by British libraries and others without the permission of the digital rights holder.
Once that happens, you might as well kiss your copyright goodbye. Your book has not only been kidnapped, but handed over to the pirates. As Parliament lurches along hand in hand with Blind Pugh and Long John Silver, somebody else will be burying your treasure. Arr, arr. Isn’t that funny?
At this point, most of the organized opposition in the U.K. is coming from photographers, photo licensing agencies, distributors of news photographs. This also happened in the U.S. in 2008, when photographers got together and stopped “orphan works” legislation in Congress.
It’s hard to understand why writers, who are just as directly affected, are hard to stir up on this issue. Maybe we’ve had copyright so long that we thought it was genetic, or something?
What’s happening is that the Corpocracy — first Disney, then Google, to be followed by Amazon and the rest — has been working for over ten years now to dismantle copyright in practice and destroy it in principle — and to get government sanction for doing so.
Copyright Office seems to be paralyzed; the Department of Justice is looking away; the present Congress is hardly likely to protect art or artists against corporate greed. It’s up to us, the artists, the photographers, the writers, to defend our rights.
At this point, I don’t know any organization working to co-ordinate us into an effective movement except the National Writers Union. However you feel about unions in general, if you’re a writer of any kind, you might look into this one. It’s small, it’s active, and it’s on our side. Nobody much else is.
21 January 2013
Here are some useful links:
Two British resistance websites —
- Photographers: http://www.stop43.org.uk/
- Authors: Authors Rights
Encouraging information here:
In the U.S., the National Writers Union statement opposing the British legislation is at:
And here is the NWU’s warning about what the British bill can do to American properties. It ain’t pretty.
- Violate the obligations of the U.K., pursuant to the Berne Convention, with respect to the rights of authors of works first published in the U.S. and elsewhere outside the U.K.;
- Misidentify many works first published in the U.S. and other countries — particularly works simultaneously published in multiple countries, U.K. editions of works previously published in different editions in the U.S., and works first published online on servers in the U.S. — as having been first published in the U.K. and as being “orphan works”;
- Authorize reproduction and use of U.S. and other foreign works without the permission of the author (or other holder of the particular rights being exploited) in ways that interfere with the “normal commercial exploitation” of rights to those works; and
- Impose burdensome “opt out” and/or “claim” requirements, constituting “formalities” prohibited by the Berne Convention, on foreign authors who do not want our work included or authorized for reproduction or use through “orphan works” or ECL schemes. (The costs which would be imposed by these proposals on authors, whether in the UK or abroad, of searching lists of works to which some of the rights had provisionally been identified as “orphaned”, are entirely omitted from the Impact Assessment prepared by the IPO, even though these costs would manifestly be the largest category of costs imposed by the “orphan works” scheme.)