Dan Heller is one of the most authoritative US commentators on the photo business. Always erudite and considered, what he has to say is always worth reading. However I can't help that feel he has gone off piste with 'My take on the Orphan Rights Act of 2008.'

To an extent Dan is correct that a lot of FUD is flying around the net, which he labels hysteria, but it's not all hysteria and it's not all baseless. It seems to me he barely touches on what are the real dangers of this Bill. And since Dan accuses critics of never having read the Bill, my 'take' 'Why The Orphan Rights Bill 2008 is Uncle Sam's thieves' charter' was based almost entirely on reading the actual Bills, without reference to what anyone else thought. I only began looking at the lobbyists pro- and con- points of views after drawing my own conclusions.

Probably Heller has never read my piece, and there's no real reason why he should. After all, it must seem to him to be a domestic US issue. What possible relevance could a UK writer add? Unfortunately, I believe the direct impact of OWA2008 will mainly fall upon non-US photographers, whose lack of access to US courts and lack of use of US Copyright Office registration or the proposed US privatised registries will make us prime targets. Only later will it impact US professionals as they have to compete on price with stolen goods.

To a point I agree with Heller: some of the stuff that is being said is unrelated to what the legislation actually says. It's untrue, for example, that you will immediately lose your copyright of any work you fail to register. The law says no such thing; the situation remains compliant with Berne in that copyright remains a passive act, 'without formality'. To that extent I find myself at odds with many of the US critics. But it seems to me that statement is not so wrong because there is a gulf between what the law liiterally says and what it will translate to in terms of infringing behaviour, as users become acclimatised to their new freedom to use work without explicit permission.

The difference between what law says and the unintended consequences that flow from it is a major issue here, in the same way that US consitutional freedom to bear arms translates to mass homicide. Nowhere in US law does it say 'go and shoot your family members, neighbours and yourselves', but it happens anyway because the law facilitates access to weapons. This doesn't make everyone who has a gun a murdering maniac, but it does enable maniacs to be more devastatingly effective.

Right now, US copyright law has a strongly inhibitory effect on infringement, to an extent that is probably only really clear to someone from a different jurisidiction with different domestic approaches to IP law. Despite common cause via Berne and other treaties, UK entirely lacks the US scheme of registration and statutory damages for intentional infringement. We have a very different, indeed near-toothless, law which defines how UK publishers behave, and they behave consistently badly because they have little to fear.

This bad behaviour has many different aspects but can be summarised as contempt for photographers and photographers' rights. Once separated from the photographer, the photographs are very frequently regarded as the publisher's property despite copyright belonging to the author.

Often this is formalised as a 'sign-or-never-work-again' contract, for exactly the same payment that a single editorial use would require. But often it isn't; many clients believe they own the work and all rights to use it any way they wiish. The removal of photographers' metadata is commonplace, bylines are a rarity, moral rights are limited and unenforceable. A common ploy is self-billing, where instead of paying the contributor automatically the copy is marked up 'await invoice'. If the photographer happens not to see the publication, they are none the wiser and never get paid. And if they do, sorry, it was just an oversight, not an intentional infringement. Some of UK's largest media companies play this game because it is profitable and legally safe.

Yet our law is not half as bad as where the US is going with OWA2008. We can sue for infringement, and we can usually recover legal costs and the fee we should have been paid in the first place. Yes, we can get somewhat more for flagrancy, but that depends on proving intent, which without psychic powers is unrealisable. In practice it's much easier and cheaper to offer a retrospective licence, and then sue to recover the debt when it remains unpaid. But all of this takes time and money, and with rare exceptions photographic usage is so poorly paid that spending more than a few hours trying to recover what is owed just makes us poorer.

This might not seem all that different from pursuing infringements against unregistered works in the USA. But US publishers seldom know which works are registered and which are not and may cost them up to $150,000, and that tends to make them cautious. UK publishers always know that the worst that can happen is that they have to pay what they'd have had to pay if they'd sought permission. And that, plus a bit, is what they offer to settle to avoid court costs, if leant on hard enough. Most of the time they get clean away with it as the infringement goes undetected, or because the photographer is afraid of upsetting a client and losing future work.

UK photographers are to a large extent unable to obtain what protections UK copyright law provides because market realities trump law. The 1988 Copyright Designs and Patent Act already contained significant concessions to publishers, introduced to appease industry lobbyists at the last minute, especially regarding moral rights. The publishing industry's lawyers have been trying to subvert the remaining legal framework ever since, most often through 'offers you cannot refuse' contract terms. These are frequently invalid because they are imposed unilaterally, sometimes after the shoot, sometimes on payment cheques which require assignment of copyright before the bank will accept them for processing. Regardless of the illegality and ethical brinkmanship of these practices, they have become industry standard behaviour. This is simply a matter of force majeur; publishers can afford lawyers, photographers cannot, so they go unchallenged.

So I ask Heller to consider that the framework of copyright law, practical access to litigation and business realities combine together, and the resulting mish-mash has defining role where usage and infringement are concerned. You can repeat this observation in any country you like, and find much the same. There will always be those who will break any law, but most will stay within a perceived balance of risk vs. cost. However, where there is wriggle room, maximum advantage will be taken.

Which brings us back to OWA2008, and its proposal of a radically different balance of risk vs. cost from that which currently obtains in the USA. Heller bases his belief in the benign nature of the OWA on a number of key observations:

In other words, before anyone is eligible for limitations on damages, they must have done a search that is compliant with the methodologies listed above, and documented in such a way so as to prove to a court that the user has complied with the Act. This makes the task of "frivolously stealing an image and hiding behind the OWA" less likely of a problem. One would have to carefully weigh the cost of properly documenting a legally defensible "diligent search" against the cost of just licensing the photo in the first place.

This sounds reasonable until you consider the realities of initiating a court case in the USA. At present recourse to the courts is not feasible unless the work is registered with the Copyright Office. Contingency fee lawyers will take on infringement cases only because of the possibility of statutory damages, but unregistered works require the copyright owner to fund their own litigation, and the latter almost never happens.

This will still be the case after OWA, but with one crucial difference : users will be able to perform visual checks and see which images are registered with the Copyright Office. So long as they avoid asserting orphan claims against registered works they can be confident nobody will drag them into court to challenge the diligence of their search. Furthermore the OWA makes it clear that, should the quality of the search be upheld, any award by the court can only extend to 'reasonable compensation' and cannot include lawyers costs for challenging the claim. The photographer who contests an orphan claim here stands to lose far more than they can possibly gain.

This is a major shift in the cost vs risk calculation for infringers, and I believe it will rapidly change the US culture of use and infringement. At present it is cautious and respectful out of fear of statutory damages. Once that fear is removed by the ability to screen images and decide which are safe to steal, that fear will be removed and attitudes and practices will change to reflect the new boundaries. The US will become far more like the UK, where no work is registered and no hefty penalties exist.

The idea that privatised databases will prevent orphans by containing valid author details for much unregistered work is simply delusional. Even if, starting tomorrow, every single new photograph was added to these databases, it would still leave countless millions of pre-existing works out there on the web with no corresponding database entries. It will take years, perhaps decades of operation - and probably never - before this changes.

Meanwhile the only reliable information that the databases will contain will be imported Copyright Office registration details. And since these are already peppered with orphans whose owners have moved, died or otherwise become untraceable, they will serve only as a flag for searches that must be done properly because they might be challenged in court.

All those millions of unregistered images that plausibly look like orphans can be used with impunity because no author will start a court case to win an "amount on which a willing buyer and willing seller in the positions of the infringer and the owner of the infringed copyright would have agreed". For almost any conceivable use of a photograph the costs of litigation will be orders of magnitude greater than the award. The user will be able to defuse any threat of litigation by offering what they consider reasonable, and that means the orphan search can be cursory because it will never be exposed to inspection or challenge.

Proponents of OWA2008 such as the American Library Association argue that even having to file searches with a Notification of Use Archive will be onerous and costly. The NUA requirement only appears in the House version, but even if the filing requirement survives, there appear to be no checks whatsoever on the diligence of the search except the court itself. The OWA2008 proposes no extra penalties for wilful or negligent orphan claims. If the orphan limitation is denied they just become regular infringement cases. But they will never get to court anyway when unregistered works are involved because they are uneconomic.

So why would any US-based user not see all of this as a heaven sent opportunity to infringe with impunity against unregistered works, which is almost all of them?

Even if Heller is unaware of this canyon-sized loophole, Shawn Bentley, the author of the Bills is not. Mindful of Congress' awareness that litigation is already beyiond the resources of most creators, and also that the OWA has the capacity to generate an avalanche of small-beer disputes, his Bills propose a feasibility study for copyright Small Claims courts within 2 years of enactment. At best, this will be bolting the stable door after the horse has been given a 2 year head start. And for sure it will be entirely valueless to photographers outside the USA.

Which brings us to the next part of Heller's failure of imagination:

Of course, the one thing this relies on is photographers actually registering their works with the Copyright Office. Not doing so has always been dim-witted, but after the OWA is enacted, there's all the incentive to do so. And now that you can register online, the process is even easier than that one-page form you used to have to fill out.

I just don't think Heller is looking in the right place here. He is approaching this whole matter in terms of how it may directly impact US-based professional photographers, for whom registration seems a sensible protection of their valuable intellectual property.

This is a fatally blinkered view. We know perfectly well that the last decade has seen accelerating commodification of photography, and that has global reach just like the internet that sustains it. Professional photography is now subject to a war of attrition, from microstock, from crowdsourcing and citizen journalism, and DIY shooters substituting for commissioned professionals. Does Heller think none of this impacts on professionals? As competition increases with more professionals chasing a shrinking volume of viable business, prices and margins fall. This is now at such a pitch that it is culling many accomplished professionals. Entire genres of photography are becoming unviable, beyond the reach of amateur access yet too costly to compete with cheaper content. We simply cannot all crowd into a shrinking rump of glossy high-end work as the mass market casualises into near-as-dammit cost-free supply.

So when Heller says:

What's the net effect of all this on the photo licensing industry? As I wrote in my January 2008 blog, Infringements themselves could become a thing of the past. While people could still "steal" images and publish them without the photographer's consent, they'd be taking a huge risk in doing so because if the photographer caught them (a highly likely event, given that media of all sorts is being digitized and indexed, therefore "findable"), the case in court is pretty cut and dried: "Your honor, all one needs to do is simply input the photo in the copyright office database and my name comes right up." How could a judge not find the infringer guilty? Better still, it could determine that the search is so easy, that not doing so would imply a willful infringement. By statute, "willful infringements" increase the ceiling of the damages the judge may award from $30,000 per infringement to $150,000. With that kind of risk and a sure-fire losing case in court, the number of infringements would drop considerably.

...I believe he is making the entirely unwarranted assumption that most work will be registered. Infringers will actively seek out and prefer unregistered works, because they will save money by doing so.

This doesn't mean all photo buyers will overnight become orphan abusers. High-value purchasers will still look toward professional sources for quality and for indemnities provided by model releases and so on. But a large part of the food chain is likely to change its eating habits, given this opportunity.

In this casualised global photography market, no matter how 'dumb' it is not to register work, and no matter how relatively cheap and easy it is to register, only a tiny minority of works worldwide will ever be registered. Amateurs shooting microstock and puttng work on Flickr and MySpace is where we should be looking to see the true impact of OWA2008 as a vast opportunity to use alleged orphans without asking, usually without detection or payment, and without fear of legal consequences. Should the 'user' fnd out, a 'reasonable compensation' of a few dollars will be the going rate for any commercial use. And the copyright holders won't care, since they already almost give their work away anyhow.

We already know that commercial image users are trending toward using Google Images and Flickr to prospect for images instead of traditional stock libraries, and both are awash with orphans. Heller really needs to ask himself : what will the impact on professionals be if this escalates?

It's not hard to anticipate how this thieves' charter will play out, for very large numbers of US publishers once they have understood the freedom to infringe that OWA2008 grants them. OWA2008 mandates a workflow that almost guarantees no cost and no legal blowback :

1. find an image via Google images
2. check it's unregistered (ie not found in the visual search of the certified databases)
3. cursorily check it's plausibly an orphan (no IPTC, no byline, no obvious copyright holder contact details, if on a foreign server you're home free)
4. make a note of all the above and file it with the Notification of Use Archive, if the requirement surviives passage into law which it likely will not.
5. use the image free of charge and with complete impunity

Having done it - aside from step 2. which doesn't currently exist - it takes around 5-10 minutes to get to the point where it's clear whether an image is plausibly an orphan or not (and in my little random test most were). That is faster than searching commercial libraries on keywords, and the downside of those is that you have to fill in license forms and account details and pay a usage fee. Why bother? Why pay?

Iit simply isn't good enough to take the OWA at face value. Its meaning and payload are within the context of where photography and publishing are headed. Increasingly this will mean web use, and web use means low margins and high volumes. Nobody much is going to pay for any content they can get for free, and that is the established model which not only governs consumer behaviour but also publishers. The inclusion of commercial use of orphans (a hint of ullterior motives, perhaps) in OWA2008 sets the stage for undercutting stock and even microstock, by prising open the vast resource of untraceable images scattered around the web. If you don't like that, and professionals will not, then yes, you can expend your time and money to register your work. But realise that even if you do, you will be forced to compete within this global 'market' of almost-free images. And remember it is photographers who will have to do the work of finding out where and by whom their work has been used, in order to claim this 'reasonable payment' that in practice will be pennies, because to challenge the orphan claim or the payment amount will simply be impractical. How can we compete with 'free'?

In the end, photographers are really not losing anything at all with the OWA, and I see no real concern for risk in any of the areas that has been getting all the hoopla. Granted, it's not a perfect bill, and I don't doubt there is probably language that needs cleaning up. Nor am I disputing the (currently unknown) possibility that the OWA might exacerbate infringements. But that doesn't mean they will necessarily be "successful" infringements. And, even if there is an increase, it would be a short-term anomaly, quick to subside once people become aware that the OWA doesn't protect them as they thought they would.

I see this exactly the opposite. That initially infirngers will continue to be cautious what they do. It will take a while for them to realise that, so long as they avoid making claims against registered works, they are unassailable in practice. Then they will realise they can be sloppy in their 'diligent search' because it will never be tested, and they can be mean in the 'reasonable amount' they offer in compensation, because nobody can afford to challenge them in court where the risks of losing money have no upside of significant damages. And they will also learn that the safest bet is material outside the USA which will almost never be registered and from where there is no access to US litigation.

Nobody can be sure how this will play out, but I don't think the view I spell out here is even slightly 'hysterical'. I see US publishers merely taking maximum advantage of the cash-saviing opportunities that the OWA2008 will place in their laps, and why wouldn't they? I see a goldrush opportunity to make profligate use of the literal billions of IPTC-free images and copies of copies hosted under anonymous pseudonyms around the web. And I see the USA, intentionally or not, wrecking much of what little viability still remains for most professional photographers worldwide, and making a nonsense of Berne's protections for copyright holders around the world. Isn't that bad enough?