There is something very puzzling about this whole Orphan works bill and what is implied. The gist of it says that if a user cannot identify the owner of an image, he/she can legally use it without suffering a huge penalty. In a nutshell. Hear me out.
One of the biggest issue here is that it appears to make the owner of the Copyright solely responsible for having his/her work properly credited and making sure it stays that way.
The majority of the time, an image in its digital format, leaves the server of its owner fully captioned and properly credited. Along the lines of production, purposely or not, the metadata gets violently separated from its image. Either by the action of software or by the hands of humans. Sometimes, the credit reappears geographically near the image and stays there. Sometimes it doesn’t. If it doesn’t, the copyright owner could find himself smacked in the head with an Orphan Work issue although he took all precautions possible.
Whose to blame ? The publishers. Are they liable in any way ? Absolutely not. Although they can create a troublingcircumstance to a law abiding photographer, they are not legally responsible if they strip the source information from a file. Why is that ? After all, they are the ones who can make a file orphan. They are the ones that cut the copyright umbilical cord.
So, even if a photographer explicitly and tirelessly informs his images with the proper information, there is no guarantee that it will stay there.
Now, now, you will say. There is the DMCA ( Digital Millennium Copyright Act ) that specifically says :
- `(b) REMOVAL OR ALTERATION OF COPYRIGHT MANAGEMENT INFORMATION- No person shall, without the authority of the copyright owner or the law–
- `(1) intentionally remove or alter any copyright management information,
- `(2) distribute or import for distribution copyright management information knowing that the copyright management information has been removed or altered without authority of the copyright owner or the law, or
- `(3) distribute, import for distribution, or publicly perform works, copies of works, or phonorecords, knowing that copyright management information has been removed or altered without authority of the copyright owner or the law,
- knowing, or, with respect to civil remedies under section 1203, having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title.
Indeed it does create liability. If it is done on purpose. Which is not, most of the time. Simple image manipulation does frequently and inadvertently erase all information . And the image is orphan. Furthermore, for photographers and agencies who license a lot of images, it is impossible to track easily. What, you are going to download all your image used to see if the metadata is still there ? And if not, what exactly are you going to do? Sue your clients for something they might have not done on purpose. In this economy ?
You get the point. The Orphan works bill might make this clause more frequently used, although, I beleive, a take down is all you can legally request. But its not going to solve the issue.What will, is if our friends who are so desperately trying to create standards, would actually enforce these standards and make it a requirement that no software can and should remove metadata without active participation of a conscious human being. It should actually be a law, or an addendum to the DMA.
it should read : REMOVAL OR ALTERATION OF COPYRIGHT MANAGEMENT INFORMATION- No person OR Software shall, without the authority of the copyright owner or the law–intentionally remove or alter any copyright management information, bla bla bla..
And any application that interface with images should be DMA compliant and have a great big green sticker on it to claim it. Now, that would solve a lot of issues and make the Orphan Works bill much easier for everyone to accept.