Much of the debate surrounding Orphan Works hinges on how common orphans are or are not.

Advocates of the legislation maintain that they need a 'right' to use photos that cannot be traced, which evokes a vision of frustrated, hardworking librarians and acadenics struggling and failing to find the copyright holder of works of cultural value. Don't worry, they say, stop the FUD, read the Bill, it will not harm anyone.

On the other hand, what alarms photographers is that digtal images are reproduced endlessly, carelessly and easily, and more often than not all traces of ownership are removed. Nobody has counted the number of orphans out on the web, because nobody can, but we have the sense that the vast majority of images 'out there' are difficult or impossible to trace back to their owners.

So here's a litmus test, and it's one that anyone can repeat. Go to Google images, and try and find out whether it's possible to find out who owns copyright of any arbitrary photos, and whether they are contactable.

So, lets' think of a suitable random keyword. How about 'orphan'?

http://images.google.co.uk/images?q=orphan finds 812,000 images. Let's just look at the first 5, because it takes a long time to chase these things down, and the ones at the top of the search results are probably the least likely to be orphans, being on large, reputable, well-trafficked sites.

1. Injured Iraqi orphan - see here

• Has no IPTC data embedded
• Has no visible watermark
• Has no byline for the photographer and no caption that might allow indirect identification
• Has no copyright statement for either photographer nor site owner
• Has no contact details for site except "The World Prout Assembly is a non-profit organization affiliated with Proutist Universal Global Headquarters, Kolkata, India."
• Is almost certainly a professional news photo either used under license, or more likely used without authorisation.

Conclusion : may be traceable with enough time and effort, but probably an orphan work

2. Armenian orphan - see here

• Has no IPTC data embedded
• Has no visible watermark
• Has no byline for the photographer and no caption that might allow indirect identification
• This photo relates to massacres of Armenians perpetrated between 1920-22, so may be out of copyright
• Page is bylined "Compiled and written from numerous public sources for Bible Probe
  by Steve Keohane, USN (Ret)". No contact details are given for Steve Keohane. However a Google search finds several Steve Keohanes, one of whom is the page author, and provides email, mail and telephone contact details.

Conclusion : may or may not be an orphan, if not already expired copyright. The page author may be able to identify the source and enable status and ownership to be established

3. Uncaptioned generic orphan girl image see here

• Has no IPTC data embedded
• Has no visible watermark
• Has no byline for the photographer nor caption that might allow indirect identification
• Has no copyright statement for the photographer but has a site copyright statement "© 2006 Friends of God World Outreach, Basildon, England UK. No text or images from this web site may be used without
  express permission of Friends of God World Outreach. Charity Registration Number 1104511."
• Site has a contact page which provides a UK telephone number and web contact form but no email address nor postal address.

Conclusion : Photographer or rights holder may be traceable via the site owners

4. Uncaptioned Iraq photo - see here

• Has no IPTC data embedded
• Has no visible watermark
• Has no byline for the photographer nor caption that might allow indirect identification
• Has no copyright statement for the photo or the site
• This is a personal politics/news blog under the pseudonym 'Leafy Green' with no real name given and no contact details. The blog piece refers to a Washington Post article about an Iraqi dog being rescued, a different subject from the blog so unlikely to be the source. The image has in all probablility been sourced from elsewhere and used without permission.
• Further Google Image searching reveals the same photo used at Photobucket for inclusion in a MySpace profile and also in a blog. The latter links back to a CBS report which features the photo and (again) contains no IPTC info nor byline for the photographer.

Conclusion : This image is in most locations a professional news photo used without attribution or authority. It should be traceable via CBS, but the unauthorised copies are much easier to find and may be assumed to be orphans.

5. Mozambique war orphan photo - see here

• Has no IPTC data embedded
• Has no visible watermark
• Has no copyright statement for the photograph that might allow indirect identification, but has a copyright statement for the website "©Travelocity.com LP 2000-2008"
• Is bylined 'Thisoldhag' which links to a user profile with no contact details nor real name. The profile discloses only that the photographer is a published freelance writer based in Belgium
• Has a contact link for the website owners and for Terms and Conditions that specify : "By submitting journals, recommendations, opinions, news articles, directories, guides, text, photographs, illustrations, graphics, logos, audio clips and images, information, data, photographs, software, messages or other materials to the Web-site ("Member Content"), you warrant that: (a) you are the owner of such Member Content, or have been granted all the rights necessary from the owner thereof to submit such Member Content to the Web-site and for the use by IgoUgo as stated herein, and (b) the use of such Member Content by IgoUgo will not infringe the intellectual property rights of or otherwise violate the rights of any third party. By submitting Member Content to the Web-site: (a) you automatically grant to IgoUgo (or warrant that the owner thereof has granted to IgoUgo), a nonexclusive, royalty-free license to use, modify, copy, distribute, transmit, publicly display, publicly perform, publish, adapt, create derivative works of, transfer or sell any such Member Content, for any purpose whatsoever, including, without limitation, a commercial purpose, without any compensation to you; and (ii) you agree that you will not publish, submit, or display such Member Content to or on any other commercial travel-related web-site or on-line service without IgoUgo's prior written consent, which consent may be withheld by IgoUgo in its discretion. Consent may be requested by sending an e-mail to info@IgoUgo.com".

  Conclusion: The copyright holder is untraceable, but the above rights grab means the image may be commercially icensed from the website operator Travelocity.com

What this small, informal and random experiment demonstrates is that 4 out of 5 of these images could be considered orphans, depending on the diligence of the search, and in the case of the other, #5, the rights grab perpetrated by the website that hosts the image effectively ensures they, not the photographer who owns copyright, exert control and economic rights.

Most importantly of all it demonstrates that every single one is not readily traceable to the photographer. All lack IPTC metadata or bylines that would immediately identify the author and provide contact details. Not one of these images is published by the photographer but by a third party who used the image. None stands to benefit the photographer in any way, either economically or through enhanced reputation, because they have been anonymised by the publishers. Perhaps the photographer knows and approves of the usage; perhaps the photographer has been paid or has donated the usage, more likely the images have been used without permission or payment.

Each of this random group of 5 images demonstrates a lack of fairness to the photographer, and that is the context in which OWA2008 needs to be viewed. Is it really wise to award additional usage rights and limitations of liability to publishers who are already careless of copyright and moral rights?

This careless predation is not at all what copyright nor Berne are intended to provide. The purpose of copyight law is to balance the cultural benefit of creative works in a way that is equitable to those who create the work. There is no sign of equity in reality. As this little test shows, publishers are only interested in the utility of the images, not the rights of the person who made them.

Nobody will deny that orphans are a real problem, but they are a problem for would-be users, not photographers. There is no balance to OWA2008, no fairness and no sense. It does nothing to inhibit the creation of orphans, and in fact encourages their creation by rewarding users with limited liability. If we must have orphan works law, then at least let us have a balancing absolute legal requirement to credit all photographs with the author's name and to leave IPTC intact. If someone wants to publish, then make them byline properly always, and make it a costly infringement to orphan work in the first place. It is just not good enough to leave photography in the hands of people who have so little respect for photographers and their work and everything to gain from their own negligence.