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Orphan Works ‘Land Grab’ By The Public Sector Now EU Authorised – Thin End Of The Wedge For IP Owners?

by Naresh Sarwan on October 9, 2012

According to the The Register yesterday, EU ministers have approved legislation that will allow public sector organisations, including libraries, museums and universities to use so-called ‘orphan works’ (intellectual property such as photographs where the owner cannot be identified)

Under the terms of the new Directive the various public bodies will be permitted to copy the orphan works into their digital archives under certain conditions. The bodies would have to conduct a “diligent search” for the owner of the works’ copyright before they digitise the material and publish the search results for others to see.  A search for the unknown owner of copyright works would be the responsibility of designated organisations in the country where the material was first published or broadcast. If material is deemed to be an orphan work in one EU member state, then it would have the same status in all EU countries. A single online database will contain details of the information related to the orphan works and include the ‘diligent search’ results.” [Read More]

As described previously, there have been many attempts in the UK and elsewhere to erode the rights of Intellectual Property (IP) owners who originated orphan works, so far without success due to the efforts made by photographers and (some, but not all) industry bodies who represent them.  The concern among many IP owners must be that this is the thin end of the wedge and once the law is established for the public sector, it will be easier to extend it to the commercial market also.

An issue with orphan works is exactly how ‘diligent’ the ‘diligent search’ for the true owner really will be.  I doubt how easy it will be to legally prove that it was unsatisfactory.  Orphan works legislation seems to provide a legal framework to wriggle out of properly compensating IP owners for their work.  Although it’s common to see photos and copy that people have ripped-off all over websites now (where before in print media you would probably have been put in front of a judge and sued for it) this is still technically illegal and, as such, there is some redress for IP owners.

I fail to understand how if you remove food or other discarded objects from a skip outside a supermarket that can be called ‘theft by finding’ and you can receive a criminal conviction for it whereas the same principle can (seemingly) be legitimately applied to intellectual property that someone has potentially spent significant amounts of time and money to create.  The burden of effort to verify ownership should be on the IP user, not the IP owner.  Perhaps I have over-simplified the comparison, but it seems that during a period when the stock media industry is mired in a vicious deflationary circle, our governments should be supporting it, not making it easier for the unscrupulous to rip it off.

As always, the best protection for IP owners (especially photographers) is to ensure their media assets contain embedded metadata and they do not submit them to either social media sites, nor commercial DAM systems that accidentally or intentionally strip it.  Unfortunately, I suspect it will be a case of when, not if, more wide ranging orphan works legislation is introduced and IP owners need to prepare themselves thoroughly for that eventuality.

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{ 1 comment… read it below or add one }

Sarah Saunders October 11, 2012 at 9:27 am

Agreed. Embedded metadata is a key tool in the fight to retain copyright. See the Embedded Metadata Manifesto http://www.embeddedmetadata.org/ and watch out for the results of s survey we are doing at the IPTC on metadata rentention and stripping at major social media sites.

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