Following on from a Boing Boing post – and this great article by Mark Dery and have been researching this new Orphan Works Act and have been rather disturbed and worried. It reads like a land-grab on Intellectual Property rights that only the rich stock libraries or famous artists could afford to register or submit their works to the online registries. I think the worry is justified given that so much is available online and copyright owners have little control over what gets pirated or published without their consent, and without credit. Just saying ‘I couldn’t find it’ is not enough of a defence IMO, if acceptible for damage mitigation – especially or commercial use of images or music.
People might think this stance is paradoxical given my background and past on these issues – well I am a photographer and designer by trade too – and although this law might be great for mashups (doubtful, since the record companies already register via publishing, and most have the funds to do so) I also do believe in compensation for artists and photographers for the work they do if commercially used – by and large people who remix culture don’t charge because of the legal issues; OWA might change that (for good or bad) but I personally feel a little sick that my photos, designer work or music could be used without permission because I don’t have the $$$s or time to register them with these fictional online registries – it will bias against people who are semi-pro or amateur, or small businesses.
I think a better model might be one that defaults to Creative Commons Non Commercial – kind of like a proper public domain law for orphans, that where there is a question mark non-commercial uses are OK. I think most of the objections to this law are around monetary issues – I think most people already are not bothered by non commercial uses of their works, as it’s fairly unpoliceable on the Net anyway, but usually small scale and doesn’t do any damage – but I can see a lot of objections to commercial uses of ‘orphan’ works, ethically, monetarily or artistically.
And tbh this seems a total corruption of what Orphan works were supposed to cover – it was supposed to be older but uncredited works that have fallen out and now into copyright law and had a grey status, like the musical works that weren’t extended pre 1976, or privately published works by companies long gone.
Not some kids photographs from 2008 that he or she couldn’t afford to register….
Sadly this silly piece of legislation is more likely to put back the whole orphan/fair use debate back many years, since creators are going to take one look at the lack of commercial control and unworkable time and expense registering their portolio of work here and go ‘I don’t like this’ whereas the whole issues of orphans, public domain, fair use and such like are really important and need better laws that allow people to create remixed works but allow some semblance of control for all artists and creators over how their work is used, especially commercially since companies tend to have the better lawyers…and that’s where most of the disparity lies.
