With the demise of the US Orphan Rights Bill along with the equally popular Bush adminstration in late 2008, orphan works legislation may have seemed to have slipped below the horizon. Not much coherent has seemed to be happening publically in the UK or EC either. The subject has cropped up now and again in plenty of venues to a collective shrug of the shoulders, meetings have set out photographers' objections. bureaucrats and legislators have listened -- and then silence.

It is now clear that this was the lull before the storm. Three storms in fact: the US, UK and EC are preparing to legislate imminently. Add several more when you consider the not-unrelated pressure for libraries to be able to digitise and distribute works freely. Then there is the whole Google Books fait accompli, where Google has strongarmed book digitising rights then made a settlement that is now an offer authors cannot refuse.

The proponents argue that all this is necessary evolution and adaptation to the digital world we now inhabit. On one level, that's true. This is about reshaping the digital economy to better suit its industrial players and consumers. The new ecology benefits everyone except the people who create the stuff these two are fighting over.

What we are seeing here is an attack on the Berne agreement that internationally sets out the basis of copyright. What is changing is not so much law itself, but the practical realities that are being tunnelled under the wire. Although nobody is directly altering Berne's insistence on authors' copyright existing without formality, the reality is that unless considerable formal effort is made to document and assert copyright, it will be annulled and lost.

American orphans

I've been having some discussion with an American regarding Orphan Works. For various reasons, this person must remain anonymous, but was kind enough to send me a very thorough critical consideration and re-write of OWA2008. It successfully and impressively addresses most of the gross issues OWA2008 presented to creators by tightening and changing language to produce a balanced document Allegedly some of the revisions have been accepted by legislators and will appear in the next draft.

How much the new Bill will differ from the old Bill is unknown, but were orphan works not a trojan horse for covert mass robbery, there would be no reason not to accept all of the revisions. Then it might even be something we could live with in legal terms. But there remain unresolved major aspects that we cannot live with in practical terms, contained not in what the Bill says but what it completely fails to address. More about that later.

And that's the good news. The bad news is that, counter to rumours that Obama's legislative programme is too crowded for this to happen, that the administration is IP-friendly and supportive of creators, a revised Orphan Works Bill will be introduced very soon. John Harrington reports 'weeks'. Three days ago our source indicated 'within the next 10 days' and expected to pass during the next session of Congress.

It's pretty clear that the US implementation of orphan use will punch holes through TRIPS, and in theory expose the USA to trade sanctions. However those nations most likely to complain have their own irons in the same fire.

UK reviewing copyright

It's an open secret leaked from the Intellectual Property Office (IPO) that UK Orphan Works legislation will feature in the next session of Parliament. Previous expectatons had been that it could be 3-5 years before this happened.

In UK, orphan works is not a separate issue but part of ongoing attempts by Government to update IP law in general. David Lammy's review of copyright will no doubt include orphan rights, though what he has planned for photography nobody knows. Allegedly Lammy himself had no idea photography was within his remit until given this surprising news by Mike Holderness, the NUJ's roaming international copyright expert, who met him to provide evidence.

One can't entirely blame Lammy, whose brief was provided by the Gowers Report. Gowers showed no signs of even having read submissions by all the UK's major photographic bodies and utterly failed to mention our little world. His report appeared entirely preoccupied with adjusting the balance of power between corporate music, film, publishing and software interests vs. consumer and free culture lobbies. For these major protagonists, the puny rights of individual creators of what they fight over are inconvenient, and Gowers accurately reflected their views.

So far, UK government is minded to view orphan works as similar to abandoned bank accounts, which become disposable assets of the state. Yes, that's right : anything that's plausibly an orphan work will belong to UK PLC, and so will any money they can realise from licensing. This would at least be consistent with the rights-grabbing contracts favoured by most government departments when commissioning photography. The IPO is believed to consider this wholesale thievery an elegant and simple solution, since it requires no new legislation. However UK may have to shape its ideas to conform to whatever the EC decides.

EC connections

EC meditations on orphan works had been ongoing until a few months ago, involving a more or less incomprehensible network of arcane interest groups, pan-european and national, all jostling to have their point of view represented.

In EC librarians are driving the orphans agenda to a far greater extent than the US, where corporate interests such as Google are nakedly involved. Not that libraries are any better; they are after all the seminal Pirate Bay from long before the internet existed, Their remit is to share freely, and they have only been housetrained through lending rights payments to collecting societies. Now they want to freely distribute digitally as well, and copyright is an impediment, so they are pursuing exceptions for that as well as immunity from liabilities arising from orphans.

Briefly dead in the water, EC orphan works legislation seems likely to start moving again in the new session now elections are completed. It isn't yet clear what will emerge, but licensing of claimed orphan works by collecting societies looks possible. This is a replication of public lending rights : publishers of orphans will have to pay indeterminate fees to a collecting society, who after deducting administrative costs will periodically disburse unclaimed net earnings to, well, someone. Possibly photographers' representative organisations will be the beneficiaries.

Authors rights

Most EC countries operate an IP system based on authors' rights where copyright is an inalienable right of the creator (cannot be assigned). This lends a different emphasis to the EC debate. In Europe, the argument has immediately pivoted around mandatory attribution and legally enforceable moral rights to prevent the creation of orphans in the first place, as an essential quid pro quo for any legalised rights to exploit orphans. Photographers' representative groups appear fairly unanimous on this.

In the US, it's all about money and the previous Bills have been phrased to curtail statutory damages for Copyright Office registered works, as that's what really frightens infringers aiming to exploit orphans. Only belatedly have US photographers subsequently begun to think like Europeans, that mandatory attribution and preservation of metadata is a huge, unresolved issue.

In UK the argument has been raging for some time in the broader context of the proposed overhaul of copyright. In 1988 the Copyright Designs & Patent Act's moral rights provisions were castrated at the last moment by publisher pressure, making the legislation into a chocolate teapot. Publishers have been cheerfully orphaning photographers' work ever since, as a direct result.

That the same publishers would now like to use orphans without bothering to ask or pay is hardly surprising. It's equally unsurprising that UK photographers are now pressing to adopt the European model of inalienable authors' rights - although it's clear that not even that model can defeat publisher bullying.

The Intellectual Property Office (IPO) seems to reluctantly accept that creating a legal right to exploit unidentified work is inconsistent with the legal freedom to render it unidentifiable in the first place. On the other hand publishers bellow that having to respect moral rights will cost them millions, destroy profitability and put people out of jobs, although that is something they are achieving anyway. Still, this isn't what Government wants to hear whilst already facing electoral disaster for putting UK PLC down the toilet and the taxpayer in hock for 30 years. Latest indications are that politics will triumph over reason and IPO will give publishers exactly what they want.

Among photographers - if our views mattered, which they clearly do not - is an emerging international consensus : that it's unthinkable that orphan works legislation could be tolerated without enforceable legal requirements for bylines, maintaining metadata and so on. How any of this could actually be enforced is as deep a pile of mud as orphan works itself.

Let there be registries

Also shared among the proponents of orphan works is a belief that databases of visual works fix the problem. It seems self-evident : let creators create authoritative records of their work, then they can protect its authorship. Who could argue with such fair-minded logic?

There is of course nothing wrong with registries in principle. Many people have advocated them since long before orphans became a factor. Nevertheless what's now happening is chaotic and designed to frustrate any attempt at diligent search.

We only have to consider the so-called orphan problem to see where things are going wrong. Orphans are to a great extent the lost children of the internet. Along comes a child molester who can take the child away and exploit it, if they can prove they couldn't find its parent. What registries do is make the problem of child abductors the responsibility of parents, as a definitive way to be certain that the child cannot be kidnapped.

But registries aren't lost children tents, and nobody will announce that lost children need identifying. Not even the US Notification of Use Archive does that; it has the role of notifying which parentless children have been abducted with immunity from statutory damages. Parents will have to check this relentlessly but fundamentally it does nothing to protect their kids, it protects their abductors.

For a registry system to have any practical value it would be a single, unified scheme, accessible from anywhere, much like the DNS system is for looking up domain names. DNS search is transparently delegated to whichever server holds authoritative details, but orphan searches will be a matter of searching every known registry, every published web and print source. Faced with impossibility, every search will be defective and just a matter of how soon the searcher gives up.

Of course legislators don't want to think about design and implementation of workable systems nationally, let alone globally. They just want it done without having to pay for it. Cost is why the USCO is and will not be visually searchable, and the problem has been thrust onto 'two or more' certificated private registries instead. The UK IPO too has said registries may be part of the solution but it has no intention of providing or specifying one.

This wishful thinking is a vacuum which private business is supposed to fill any way it sees profitable. The whiff of opportunity has already spawned many registry projects, including some dubious ones - a new hot ticket for web speculators and scammers keen to feed off the FUD.

Instead of fixing the orphan 'problem' this-free-for-all is going to make it insoluble as photographers confront the practicalities of having to file their thousands of images with hundreds of different registries around the world. We can't do it, but if we do not, our work may be prima facie orphans liable to use with impunity. At that point the Berne requirement for copyright to exist without formality, is effectively dead whatever the law says.

Piecemeal evolution of umpteen unconnected incompatible databases around the world, each driven by differing national requirements, is a plan for distraction burglary. The unintended consequences are so egregious it's hard to believe they are unintended. If the web had evolved the same way, it simply would not work, and this won't either. These registries are web entities and by acting alone into this globally shared space, disaster is asssured. We desperately need internationally joined-up thinking but there is no sign we will get it. The orphan debate has already moved the goalposts : let those who care about their copyright make the effort and investment to protect themselves.

Pro's still think 'it's all about us'

All solutions, USA, UK and EC, strip exclusive control of copyright from authors. All allow someone other than the copyright holder to set prices and license terms. Some go as far as taking the money as well. All impose the formality of using registries as the only way to be sure of defending copyright.

These are gaping wounds in the Berne convention that represent a major shift in international copyright law. On one level it merely formalises what we already know : that copyright in the hands of corporates is brute power, where individuals can seldom achieve an equitable deal let alone enforce their rights.

This is destructive of individual creativity and media quality, it's unjust and unworkable, yet this is the scenario that will be legislated around the world. It's clear from the nature of what is planned that it's designed as an obstacle course ostensibly for would-be orphan users, but the obstacles are in reality aimed at creators who hope to maintain their rights. Different legislative jurisdictions are involved in regulating what is essentially a global issue. A photographer may reside in one country, a publisher in another. Whose set of rules applies? Is an American photographer going to sue the UK government for licensing his orphaned work to a UK publisher? Is the entire world going to register all their work with the USCO so there's a possibility of sueing negligently-searching US publishers?

Those most concerned at these impracticalities are necessarily professional photographers. Copyright is the only asset any photographer possesses, and pro's tend to be resistant to the prospect of having their business stolen from under them. But, the proponents of OW point out, this isn't going to happen. Look, you can register your work. OK, it's onerous and costly and awkward, we've seen to that, but if it has value and you care, you can do it.

I think pro's are looking the wrong way, getting distracted and preoccupied by smoke and mirrors. The real payload of OW legislation is not going to be the pain-in-the-arse it represents for pro's at all, but eventually what it means for crowdsourcing from amateurs who care little about copyright, metadata, registries or cash. Increasingly, as print moves to the web with its free-to-use ad-sustained business model, this is the future of most publishing : users will not pay for content and neither will publishers.

In this context, it's downright helpful of pro's to work so hard to flag up their content as unsuitable for infringement, which is likely to be the real value of registries. Well, that and all the costly value-added services like Picscout that pro's will pay to monitor use and infringers will pay to find orphans ripe for exploitation.

Legal orphan usage is the key to unlock a vast resource for commercial exploitation, the 90% of images on the web that don't belong to pro's. Without asking, without payment, without rights grabbing clauses in T&C, and most of the time without the rights owner ever knowing. All the publisher has to find is useable material that lacks metadata, that is hosted under a user pseudonym that doesn't respond to a PM on a forum or email.

Why on earth would they bother with microstock let alone stock agencies when they can use Google Images or Flickr to find images that can be used with impunity? Worst case, they'll have to fork out microstock levels of compensation to the owner, or license the image they really want from the UK government or an EC collecting society. This end-game for photography 2.0 doesn't require imagination, just a very little extrapolation from where we are.