Great expectations of orphans

PRESSURE is building on governments to Do Something About "orphaned works"- that is, words and pictures and music whose creators cannot be located, so no-one can ask for permission to use them. The size of the problem may have been exaggerated - but informed observers seem clear that a change in the law is in the offing, some time in the next 10 years. So what's happening?

Here it is from the point of view of a photographer. Replace "photo" with "article" throughout if you are one of those strange people who shuffles words around.

Someone discovers a photo.

They try - very hard - to find out who has authority to issue them with a license to use it. In the legal jargon, they exercise "due diligence" to locate the rightsholder.

They find you, the photographer, and negotiate a license.

But what if they don't find you? At present, they should not use it - but some may go ahead on the basis that you won't find their illegal use.

There are proposals in Westminster and Brussels that there should be a way for them to use the photo legally which protects your rights as photographer. This will not happen without a change in European law.

Any such change would have to refer to guidelines defining "due diligence" (aka trying very hard to find you, the photographer). "Trying very hard" could currently include: looking for "EXIF" data, inside the computer file, identifying you; asking experienced photo researchers; searching archives for pics of the place/person/event; and more.

Some proposing a change in the law are really complaining that they have to do such copyright clearance and picture research at all. Certainly, some have worried that the whole idea would turn into a loophole for those too lazy - or too criminal - to track owners down.

Authors' organisations propose to defuse this complaint by making it easier for them to find you and pay you. We do this by proposing a database of photos and who has the rights in them.

Once such a database was built, "trying very hard" would include all the above and consulting the database. We have to work out who builds it and pays for it.

But what happens if the person who wants to use the picture does try very hard and does not find you?

At meetings in Brussels of the EU "Digital libraries high-level expert group" some made a dangerous suggestion that that person be granted immunity from prosecution. But the emerging consensus is that they should be able to get a temporary licence.

How would that work, then?

They would pay some money into a fund. And they would add the photo to a database of photos claimed to be "orphaned works".

So you find one of your pictures on that database. Contact the person who has used it. Negotiate a proper license. They pay. The issue of backdating the proper licence is still up for discussion.

If someone - Bill Gates' Corbis, Getty or some blogger - lies, saying a photo is an "orphaned work" when it is not, that will be a criminal offence. The database of orphaned works will identify people who have been hoovering up orphaned works, so we can investigate them.

One question still to be resolved is: what body or bodies should administer the fund? Another is: what should happen to funds collected for photos which are, in fact, orphaned? The NUJ proposes that they should be spent for the benefit of authors (including photographers) in general - as is done with unallocated photocopying money in the Nordic countries.

Negotiating all this will be a long process - and the NUJ will be thoroughly involved, directly and  through the European Federation of Journalists "Authors' Rights Expert Group" (AREG). It opens up some interesting possibilities: for example it has always been a nonsense that journalists in the UK and Ireland, unlike our colleagues in Europe, rarely have a legal right to be identified as the author of our works - and it'd be transparently stupid to do anything legally about orphaned works without fixing this.

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