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back to article EU green-lights 'copyright land grab' law on orphan work

EU ministers backed new laws to allow libraries, museums and universities - among other organisations - to digitise works that have become "orphaned" from their creators. The Council of Minister's formal adoption of the EU's Directive on orphan works [29-page 154KB PDF] means that member states will now have to implement the …

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  1. andreas koch
    Unhappy

    LOZ

    > . . .

    The IPO admitted that what constitutes a diligent search in one creative sector may not meet the standards for conducting a diligent search in another. This is because of the complexity involved in identifying who rights holders of certain material are, it said.

    The new orphan works law will contain scope for the Government to omit certain categories of works from inclusion in the new orphan works scheme, such as digital photographs, it added.

    . . . <

    A new Lawyer Opportunity Zone has been created.

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    1. Ian Michael Gumby
      Reply Icon
      Boffin

      Re: LOZ

      While I agree with what you said, that gap would be addressed by the copyright holder when they sued the company that digitized their work and then sold it off.

      If sued, then the burden of proof as to the diligence of said search is on the defendant and for the courts to decide.

      Current copyright laws are very, very costly when it comes to willful infringement. Based on how diligent the search, it could be extremely painful and stop the company from pursuing said revenue stream.

      And lets be clear. We are not talking about digitizing the Library of Congress, but works that are still within the protection of copyright yet the author, their heirs, the publishing company can not be found. That is an orphaned work.

      And yes, I do agree, Lawyers will make out like a bandit on this one.

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  2. Anonymous Coward
    Anonymous Coward

    Digital Photographs

    I don't think the article gets the proposal right in this respect. Quote :

    "The new orphan works law will contain scope for the Government to omit certain categories of works from inclusion in the new orphan works scheme, such as digital photographs, it added."

    The proposal clearly says that digitising photographs is outside the scope of the proposed law. ie they are already omited and it would need action across the board to bring them into scope.

    Digital images in general seem to be well outside the scope of this law and that's how it should be - at least until some workable scheme for reliably tagging digital images is devised.

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    1. Kevin Johnston
      Reply Icon

      Re: Digital Photographs

      I assume by 'reliably tagging' you mean finding a way to stop media companies 'accidentally' stripping out the tagging information supplied by the creator.

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      1. Michael H.F. Wilkinson Silver badge
        Reply Icon

        @Kevin Johnston

        "I assume by 'reliably tagging' you mean finding a way to stop media companies 'accidentally' stripping out the tagging information supplied by the creator."

        Precisely: this is what digital watermarking is about: this inclusion in the actual photograph of a data identifying its origin. A well-designed watermark cannot be stripped accidentally, but requires a concerted effort. Ideally, stripping the watermark should degrade the image enough to make it useless for many purposes. In practice, many attacks on existing watermarks exist, but watermarks are getting better. Digital watermarking is still an active area of research.

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        1. andreas koch
          Reply Icon

          @Michael H.F. Wilkinson - Re: @Kevin Johnston

          Watermarking is all very fine; I'm thinking of the likes of the "SUN".

          If they want to use your photo, they'll just print it and run it through a crappy scanner. The quality will be enough for a newspaper and they won't care if they have to acknowledge something a week later on the bottom right of page 23, below the DogMessBagHolder advert.

          I don't really want to rain on your parade there, but watermarking is getting better just as much de-watermarking is (I think).

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          1. Ian Michael Gumby
            Reply Icon
            Devil

            @Andreas Koch Re: @Michael H.F. Wilkinson - @Kevin Johnston

            In your case, the SUN would have to still compensate you for your photo, unless you sue for willful copyright infringement and can show that there is a pattern of abuse by the SUN.

            I'm assuming that beyond the digital watermark, you also placed a copyright notice on the page where you made your photo public?

            Of the cases I've seen, companies, not the SUN, have been pilfering images around the net with the mistaken idea that if you put your photo online, its theirs for the taking. I mean that they think that its free for them to reuse.

            Now some sites have a base rule that if you don't mark your images with your own copyright, its being released under creative commons. Others say that anything you upload belongs to them - be-itch!, or rather they have the right to use it as they see fit.

            In terms of watermarking, it still helps you.

            How likely is it that the SUN would have a photo, the same photo you have that is geo tagged and watermarked?

            If what you allege to be true is true, then you would have a very easy lawsuit. You produce your image with its watermark. The SUN can't.

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            1. andreas koch
              Reply Icon
              Holmes

              @ Ian Michael Gumby - Re: @Andreas Koch @Michael H.F. Wilkinson - @Kevin Johnston

              You mistake my intention, I think.

              It's not about the SUN taking my photograph without remuneration, it's about them taking it at all.

              Think along this: The Sun takes your pic from facebook, where you proudly change your first-born's nappy and use it in a headline like "[insert your home-town here] CHILD ABUSER CAUGHT BROWN-HANDED! (!!). The damage is done, you can't show your face any more, whatever they may pay you later, or whatever statement to the effect that "they picked the wrong pic" they print on the aforementioned DogMessBagHolder page.

              Still worried about money?

              And they have more lawyers than I have; which is admittedly quite easy.

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        2. dssf
          Reply Icon

          Re: @Kevin Johnston

          imagine whatnthis would do TODAY to facebook's value. In Korea and oter places, ones mobile allows scrawling on and obscuring faces. Writing or stamping copyright info was easy on my Vodafone Sharp V402SH in 2004. Today, it seems it is a conspiracy that ordinary people (responsible one at least) cannot easily, freely (as in money free) tag and watermark their photos prior to uploading. That would probably, however, gut much of the implied or imputed, unspoken value of most social sites and book publishing sites that might still angle to get a right in work they did not fund, produce, represent, or otherwise other than acting as a repository or hosting site.

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    2. Anonymous Coward
      Reply Icon
      Anonymous Coward

      Re: Digital Photographs

      it (will) contain _scope_ to omit, i.e. they can omit them, technically. If they want to.

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  3. The FunkeyGibbon
    Happy

    Strangely I can see the logic in this

    Normally the idea of more legislation from the EU makes my skin crawl as it almost always codifies something in law that is ill-thought out and perverse. In this case recovering the use of these orphaned works is a good idea. I particularly like the idea of UK to make it so commercial payments are accounted for so that orphaned works are not abused and so that an author who can identify their work can still claim the remuneration for it.

    I still think there will be abuse of the system though and I agree with Mr Koch that there will be a "new Lawyer Opportunity Zone" but on the whole I approve. I'm shocked.

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    1. Mark 65
      Reply Icon

      Re: Strangely I can see the logic in this

      I agree with the UK interpretation, it's just a shame that this will be EU wide with the magical words that orphan in one state is orphan in all. Look forward to larger companies/agencies shopping around for the best EU state in which to do orphan works business. Take a work in the UK, do the search through your Greek subsidiary and establish its orphan credentials and doubtless pay fuck all for the privilege.

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    2. Vic
      Reply Icon

      Re: Strangely I can see the logic in this

      > In this case recovering the use of these orphaned works is a good idea.

      The problem is that they're treating the symptom, not the illness.

      "Orphan" works become so because the copyright protection period is so bloody long. If it were a more reasnoable duration - less than twenty years, for certain - then the very worst-case situation would be a work orphaned for a couple of decades. That's very unlikely to disappear from public view. And in most cases, the time for which a work could be considered "orphan" would be very much shorter.

      But we don't have reasonable coyright duration. We have "life of the author plus 70 years". So it's likely that copyright will last for over a century, and, once the bloke who likely cares most about the work finally dies, the copyright still lasts a further 70 years, during which time his (probably uninterested) descendents allow the work to pass into obscurity and orphan status.

      And that's insane.

      Vic.

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  4. Anonymous Coward
    Anonymous Coward

    And why is this a problem, again?

    Because copyright terms have been stretched too ruddy long already.

    With shorter terms this would be a lot less of a problem, and have a much more elegant solution: Leave it on the shelf until the copyright expires, digitise then. It's much more reasonable to wait a score years (libraries are about that fast) than to have to wait a hundred and fifty, or whatever it is this week.

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    1. Tom 7
      Reply Icon

      Re: And why is this a problem, again?

      Its not a problem, never has been. Not unless you want to use someone else work without their permission.

      For over a hundred years no-one had a right to use your work without permission. Now it seems they have a right unless you have a fucking great network of office staff and lawyers keeping tabs on all your work.

      This law basically says the individual or small company have no real rights.

      There is no such thing as a copyright work any more, just institutions that manage them.

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    2. Anonymous Coward
      Reply Icon
      Anonymous Coward

      Re: And why is this a problem, again?

      You've obviously never created a piece of art ( landscape photography in my case ) then watched as some fucking scumbags ripped it off and claimed it as their own, finally have to waste your own time defending yourself to some halfwit at a web-hosting company to get your work removed that you never authorised!

      I have no problem giving some of my work away for free so long as it's my choice when and where and copyright is respected on my hard work.

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  5. Anonymous Coward
    Anonymous Coward

    Stock libraries and agents will rip off hard working creatives given half the chance even now. It's now your problem to make sure your stuff is not considered "orphaned" 'cos some lazy sod in and office hasn't made an real effort to find you!

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  6. Mark .

    Whilst I welcome anything that relaxes the overly strict and length copyright terms, it does seem a bit of a double standard. An individual who so much as downloads a song may get his Internet connection cut off and face who knows how much in fines for damages. But companies are given more flexibility to use copyrighted material without permission - and individuals will have a far harder time asserting their rights, since they won't have an army of lawyers to notify the relevant departments - and at worst, they just pay reasonable compensation if they misuse something.

    When I see a story off a tabloid using someone's photo without permission (and they seem to think it fair game just to copy off their facebook or whatever), why don't we hear calls for their Internet connection to be cut off?

    Reducing the lengthy copyright terms would be a far better and easier - and fairer - solution.

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  7. Anonymous Coward
    Anonymous Coward

    So if you can't see the driver it's your car, right?

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  8. Gr0nk

    What happens to the money put aside

    when after what length of time (?) its decided the author isn't going to be found? How much the State gets it i.e. its another stealth tax?

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  9. Graham Wilson
    Flame

    It's just sleight-of-hand by the copyright mafia.

    "The IPO said that it was seeking to ensure that other rights holders do not "suffer from unfair competition" because of "perverse incentives" being offered through a new orphan works scheme. ..."wants to ensure that people don't have an incentive to use an orphan work over an existing known work because it's easier or cheaper to do so.""

    Why the fuck not? This is what the orphaned works copyright is and always has been about: 'industry' protection for copyright holders. This stinks to high heaven.

    What it means is that copyright holders can recycle second rate material instead of innovating--for example, an orphaned work school text book could be used for free by a school if allowed by copyright but until now it has not been. Instead, the practice has been that so-called new text books which are very little different to the orphaned work are sold by existing copyright holders as orphaned works aren't available.

    Now, as the school still has to pay anyway, it still makes sense to run with the status quo. Why wouldn't be so? After all, the school can say it has the latest available text for stuff-all differential in price. Again--as usual with copyright--it's the usual same smoke and mirrors and legalized rid-offs.

    Right, the copyright mafia have won again, this time by sleight-of-hand as it looks as if the poor long-suffering public domain has actually gotten something when in fact it's received fuck-all.

    And of course, we needn't 't ask questions where the payment for orphaned works goes. Am I the only one who has the feeling that governments are no longer owned and controlled by the citizenry? Yes, corporations and sleazebags usurped that long ago.

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    1. Anonymous Coward
      Reply Icon
      Anonymous Coward

      Re: It's just sleight-of-hand by the copyright mafia.

      That's what struck me. They'll be all this new free stuff, but we're going have to pay those who lost out because of all the free stuff was around.

      So the industry gets to use orphaned material for free but everyone else pays when they use it?

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  10. Oninoshiko
    FAIL

    Hrm..

    *looks in neighboring offices for Andrew O.*

    nope, can't find him. These must be orphaned works then....

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    1. Eugene Goodrich
      Reply Icon
      Paris Hilton

      Re: Hrm..

      Andrew O's works aren't orphaned, they're emancipated. (I kid.)

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  11. PT

    This is important

    Take a look at this data, and you'll understand why this is good and necessary even if it has flaws. Copyright is supposedly about enriching the Public Domain, but its continual extension results in depleting it permanently. Let's recover the books first, we can worry about the rest later.

    http://www.theatlantic.com/technology/archive/2012/03/the-missing-20th-century-how-copyright-protection-makes-books-vanish/255282/

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    1. Oninoshiko
      Reply Icon
      WTF?

      Re: This is important

      There are many simpler solutions. Like setting a time limit on copyrights, requiring a "nuisance fee" to keep them registered (or have them fall in the public domain).

      Having a company give an *nudge-nudge, wink-wink* effort to find the rightful copyright holders (who's best intrest to not be able to find them) is just not a good approach. So, no, I'm not going to ignore the horrific flaws when there are MUCH better options out there.

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  12. bag o' spanners
    Devil

    Please refrain from feeding the lawyers

    Notwithstanding EXIF data, which you can strip from a photo by bouncing it losslessly through an image editor which doesn't bother to read and re-write EXIF, a great big 50% transparent banner tag with pr0n connotations ought to keep the flies off squiffy low res web jpegs. Too much effort to potatochop the pixels, too little reward..

    If you value your art, don't place unoptimised / untagged versions of it online.

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  13. Anonymous Coward
    Anonymous Coward

    Re: Please refrain from feeding the lawyers

    I'm guessing (too poor for photoshop) that Photoshop Context-aware fill tools can eradicate most visible watermarks, especially semi-transparent ones that give the software hints on those partially obscured pixels.

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