In May I covered C-Registry, an orphan works prevention service that is working to create a registry of images and other visual content on the Web as well as give visual artists a means to both locate their work on the Web and ensure that anyone who finds it will know who they are and how to correctly license it.

Though my review was overall very positive, I noted that the site had several potentially serious limitations, most notably that the service could only match exact images, meaning that any modification (cropping, recoloring, etc.) would prevent an image from being correctly identified and likely make it an orphan again.

Well, last week C-Registry announced a series of upgrades to its service, including aforementioned exact matching problem. Here’s a quick rundown of the biggest enhancements.

Image (Pattern) Recognition

Where previously C-Registry needed an exact match of an image to find the original, it now also provides a collection of similar images for the user to search through . These similar images are displayed in a system somewhat similar to Mac’s Coverflow feature (see example right) and the user just clicks the displayed image to see the ones behind.

Though this system confused me at first, I’m more used to a mouse click opening up the image than moving to the next one, it works relatively well and the matching, from the limited samples I was able to see, seemed to do a decent job, catching a variety of changes to the image including sizing, color and more. As you can see in the example, it detected a different version of the scale image, one where the bowl is filled with ice instead of the brown sugar.

What is interesting about this system is that, according to their press release, the technology can also work on video and audio as well as it is truly pattern matching, not image matching. This could make it very useful to a broader audience as the service expands.

In its current form though, this system seems to be very effective and it addresses one of the major holes with the service.

Bulk Uploading

Previously, images could only be uploaded one at a time. C-Registry has fixed this problem by adding a pair of bulk upload options, one using a desktop application and the other through a bulk upload process where the rightsholder uses a CSV file with the information about each image the URL of the file and the system takes care of the rest.

Though this is something of a catch up feature, most registries offer some form of bulk upload, at least behind the scenes and is not likely to be useful for most smaller rights holders, larger ones, such as newspapers, stock photo agencies, etc. will greatly appreciate this feature since the information is, most likely, already in some form of database and can be easily exported.

At this time, bulk uploading is limited only to authenticated accounts, which costs $25 per year.

Video User Support

The C-Registry has also opened up a YouTube account where they provide some basic instructions on how to use the service, including the video about their bulk upload feature embedded below, and hopes to expand its video library with a series of tutorials and guides on how to use the service for various functions.

Though this is certainly a minor upgrade to the service it is very helpful when trying to use the site and gives a glimpse at features only available to paid users without requiring a user to put up any money.

Bottom Line

In the end, this is just one of the obstacles the site has to overcome to become a major image search database to locate and identify orphan works. It still has to solve the “chicken and egg” problem of getting enough images to warrant searching through (something it hopes to handle through partnerships with stock photo agencies) and the site itself could certainly use a visual and technical refresh (I could not stay logged in during my testing).

However, it is clear that the site is gaining some traction and that the backend technology is starting to come together. Their system of fingerprinting, not storing, files has made it possible for them to build a very large database with a relatively small infrastructure and the technology seems to be working very well. Hopefully they can continue to build upon this and grow their service.

In short, there is a ton of potential here, even more so now, but there is still a lot of work to be done, something I think the admins know very well.

Scale Photos from: Pictures Color Library UK

Video

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With the likelihood of some form of an orphan works bill being passed sometime within the next few years, visual artists, whose works are not easily searched for, have been worried that it could lead to them losing some of their rights to their works.

However, several companies have been working on technology solutions to the orphan works problem, both to reduce the need for an orphan works bill and to prevent works from becoming orphans needlessly. The hope is that by creating search tools and indexes to locate copyright holders of images, artists that take adequate steps will have little to no reason to worry about their work becoming an orphan.

One such company is StockPhotoFinder.com, which has launched a new beta service The Copyright Registry. Though The Copyright Registry’s site may not look like much, it actually belies a powerful set of tools that could help artists and publishers, especially stock artists, keep their works from being mistaken as an orphan.

The question is whether this service will gain traction, if so, will it be useful enough to entice artists and searchers alike to use it.

How it Works

The Copyright Registry, which is not affiliated in any way with the Copyright Office nor is it a substitute for a copyright registration, actually has several different components.

However, the main functionality of the site requires you to either install a bookmarklet in your browser or paste a URL into a form on their home page. The site will then go through the page and extract all of the image, letting you select which works you wish to mark.

If you do not have an upgraded account, you’ll be able to view who has been tagged as the copyright holder/aritst of various images. You’ll also be able to edit or add such tags to work, provided a formal claim has not been made. Should anyone else run another copy of that image through the service, even if it is from another site, they will see the information that you added identifying the owner.

The idea is that, should anyone be interested in using that image but be uncertain of who the copyright holder, they can run the image through the service and get the needed information. For the most part, the service works in a wiki-like format where anyone can add or alter information. Copyright disputes, should they arise, will be handled with a dispute resolution policy similar to ICANN’s Uniform Domain-Name Dispute-Resolution Policy.

The exception to the wiki format is with authenticated accounts. Those who pay $25 per year and provide additional personal information can put a formal claim on a work and “lock out” others from altering that information. Though a system such as this could easily be abused, especially since $25 would not discourage a person with bad intentions from claiming multiple works as their own and locking out non-member copyright holders, it also guards against abuse by anonymous users.

The service also keeps track of where the images it finds are used on the Web. It only looks for exact copies of the images, meaning even slight modifications of the image could throw off the detection system. The system, right now. focuses mostly on finding matches that have been processed via the bookmarklet and/or form, but there are plans to begin spidering the Web at large to look for additional matches.

The entire system works without uploading any images to the service, only fingerprints are stored, and that should help the site scale neatly even as more and more images are added to the site.

The system also has support for PLUS metadata embedded within images, though not EXiF or any other metadata at this time.

Veripixel

Another interesting element of the service is its new copyright management information tool, Veripixel. Veripixel adds a barely visible barcode to an image in the upper-left hand corner. However, since it is a full-color barcorde it is able to use only nine pixels, all in one row, to dispaly and read the data.

Here is a sample of Veripixel using the top of a large picture of Marilyn Monroe. Notice the highlighted part in the upper left hand corner (You may wish to click the link and open up the full image).

Now here are the pixels zoomed in very tight.

The pixels are a code that instantly tell The Copyright Registry which image it is and who the copyright owner is as the script looks for those pixels before matching against the fingerprint. With those nine pixels, if left intact, the registry has all it needs to determine the owner of a photograph or image. Though they can be easily removed, knowingly doing so for malicious purposes is a violation under the Digital Millennium Copyright Act and can be sued for.

However, Veripixels is a side project for The Copyright Registry and is not needed in order for the system to function. Still, it is an interesting idea and a free service for all to use.

Drawbacks and Limitations

Though there are a lot of reasons to get excited about The Copyright Registry. There are some kinks that need to be worked out and issues that would be better off resolved. They include the following:

1. Site Apearance: Though it is in beta, the site doesn’t look well put together and the usability is lacking. Though the form to sign in and add a URL are clear, it isn’t easy for a first-time user to understand how to use the site. Even the video, embedded below, only demonstrates the bookmarklet system.
2. Tagging Issues: The process of tagging images is slow. If you add a Flickr URL, for example, it will pull every single image on the page, no matter how small. This includes the logo, the avatar, the thumbnails from the photostream and much more. You may have to wade through four or five pages of small images before finding the one large one that you want. You can overcome this by pasting in only the actual image URL or by using the bulk import tools, which will be available to authenticated members shortly. However, the lack of intelligence on the script’s part in detecting which images are the highest priority can be frustrating.
3. Uncertain Future: The site is going to have something of a chicken and egg problem. For the Registry to be considered part of a “reasonable” search, as was discussed in the last drafts of the orphan works bill, it must be widely used by a lot of artists. However, until it is part of such a search, artists have little motivation to use it. The site hopes to overcome this through partnerships with stock photography agencies and larger artists. That may be enough to “jump start” the cycle of artist use and reasonable search.
4. Exact Matching Only: However, the biggest limitation that I see is that the matching performed by the service is exact only. If an image is modified even slightly, it will register as an entirely knew work. This means that artists could have to lay claim to many dozens of copies of their work floating around the Web just to be sure that none of the individual images become an orphan. This could be very time consuming.

In regards to the final point, it would be nice to see this service paired with a visual search, such as Tineye, to take some of that burden off. The decision to focus on exact matching is understandable, especially when you start looking into fair use issues and that the site was never designed to track or prevent copyright infringement, just to aid those who want to the right thing and license images properly.

But with the way copyrighted works are passed around on the Web, if anyone wishes to do the right thing but has the wrong version of the image (unless the Veripixel is intact), then there is a problem. The sad truth is that every popular image has multiple versions on the Web, if someone doesn’t search for the artist’s original, it may still appear to be an orphan.

I’m hoping that the first two aspects of the site will be fixed as the site moves out of beta, they both should be relatively trivial fixes. The third problem seems to be well-addressed already but the fourth may be a problem that plagues the registry for some time to come. Though a strategic partnership could probably solve it, it is unclear if they will do so.

Bottom Line

Overall, the Copyright Registry is an interesting service. Though it has much of the same functionality and structure as Numly and even MyFreeCopyright, it is well-targeted at artists and photographers, especially large ones with many works (at least once the bulk import tools come online).

Though I worry that the name may cause many to believe it is a formal copyright registration, despite numerous disclosures to the contrary, the idea itself is solid and most of the flaws in execution can be addressed as the site comes out of beta.

I recommend that artists at least be aware of this site and, if they have a few moments, to poke around and try it out. Registry services such as this one will likely play a major role in artists’ lives in the coming years so it is important to be familiar with the anti-orphan tools now.

Furthermore, The Copyright Registry seems to be well-poised to be one of the leaders in this field moving forward. Even if it isn’t a perfect solution, those who register and try it now will have a voice and help determine the direction it grows.

Video

Find The Creator and Copyright Owner of Uncredited Works from Any Website from c-registry on Vimeo.

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There has been a lot of talk in recent years about copyright terms and the seemingly never-ending extensions to copyright across the world. Currently, the EU is looking at the possibility of nearly doubling its copyright term on music recordings and the U.S. tacked on another 20 years to its copyright law just a decade ago.

Those who make a living from copyrighted works seem to support these extensions with an almost blind fervor. Though the current copyright term in the U.S. is the life of the author plus seventy years for works of personal authorship and 95 years for works of corporate authorship, many see “more” as universally being “better”.

The problem is that these copyright extensions come with a series of new problems and authors, musicians and others who support them may be unwittingly shooting themselves in the foot. The longer a work is protected, the more concessions they have to give up to make copyright viable.

In the end, most artists would do much better with a limited term of strict control than a century of dubious one. Sadly, we’re already seeing the signs of this problem and there may be no turning back.

A Brief History

As this chart on Wikipedia illustrates, the copyright term in the U.S. has only moved one direction, up (Note: The Chart is by Tom Bell and is licensed under a Creative Commons Attribution ShareAlike 3.0 License).

To shorten a very lengthy story, the first copyright law in the U.S. was passed in 1790 and set the copyright term to 14 years with the option to renew for another 14. A follow up in 1831 extended the term to 28 years with the option to renew for another 14. Then in 1909 it was extended to 28 years with the possibility of another 28 year renewal.

Then, in 1976, the law was completely rewritten to provide authors with a term for their entire life plus 50 years and corporations a 75 year term. Both of those terms were extended by 20 years in 1998 with the most recent copyright extension.

In short, over the course of just over two centuries, we extended copyright from a max of 28 years to a term that could, depending on how long an author lives, last well over a century and a half. While this might seem to be a big win for copyright holders, who can now will their copyright interests to their great-grandchildren, it creates a series of problems that artists need to consider.

Give and Take

The problem for artists is that copyright law is about balancing the rights of the artist over their work with the needs of the public. The artist has a right to commercially exploit their work, the public has the right to free speech and to create works of their own.

If the balance between those two things is disrupted, the entire system grinds to a halt. It is a delicate, fluid balance that has shifted with technology and culture for over 200 years.

But what this means is that, if you give artists a boon, such as a huge extension to their copyright term, inevitably, they are going to lose rights somewhere else. If copyright holders want a copyright term that lasts for 150 years, they will only receive rights that are sustainable for that long.

It may seem to be impossible, especially since the process is so slow moving, but the legal backlash has already started and may hit home sooner than many think.

The Orphan Works Problem

The classic example of this push back is the Orphan Works legislation.

One of the problems with a copyright term longer than a century in many cases is that the copyright in the work actually outlasts the material it is created on. Photographs fade, hard drives deteriorate, paper rots, etc.

This means that it is impossible for those that wish to archive a work to do so before it is gone forever. Since, in many cases, the author can not be located and permission can not be granted, our lengthy copyright term virtually guarantees the destruction of countless works, many of which may be valuable to our culture and our history.

However, Congress, quite correctly, realized that the public has a legitimate need and is served well by having its history and culture preserved so, in response to that, it has made two runs as orphan works legislation (the last one dying last year before the election) and will likely make a third soon. These bills would have made it legal to use copyright-protected works, under certain guidelines, if the copyright holder can not be found.

This, in turn, puts a huge dent in the rights of an author, at least in terms of practical enforcement and, instead of having full rights over their work for a period of time, copyright holders now have to worry that their works could become orphans the second they place them on the Web or in any public place.

The orphan works problem is not going away and it will come up again soon. However, this won’t be the only issue of its kind. As copyright lobbies push the term toward “forever minus one day” they’re creating more problems with the balance in copyright and these problems will have to be resolved somehow.

Foreseeable Consequences

What are some other potential consequences of a never-ending copyright term, consider some of the following possibilities:

1. Legalized “Abandonware”: Abandonware is a term used to describe software that is no longer commercially available, like old games. Currently it is illegal to make copies of abandoned creations, software, artistic or otherwise, but with current copyright laws, a work that is not legally available disappears for many decades. It is foreseeable that there might be a legal shift to legalize some instances of copying unavailable works, possibly even including books, music, etc. On that front, Google Book Search may be a non-legislative start to the process.
2. Compulsory Licenses: We already see compulsory licenses for a lot with nondramatic musical works but it is very foreseeable that we could see a future where these licenses are expanded to include other kinds of work including visual, written, etc. Though this might be preferable to the orphan works legislation, it would still create problems for artists wanting to control their name and image.
3. Broader Fair Use Provisions: It is also wold make sense to broaden the fair use provisions of copyright law to counter the growing copyright term. We already have one of the broadest fair use systems in the world, but it has served as the main balancing force between copyright ownership and public interest. It would be a natural choice to expand even further as the term expands, possibly to include new variables such as availability of the work, age of the work (not just whether it is published) and so forth. Much of this is already weighed in some capacity, but it could be codified into the law and fair use exemptions could be greatly broadened.

The problem with all of this is that it requires new legislation and the one thing I’ve learned in years of watching copyright legislation is that new laws almost always equal bad laws. New laws mean unintended consequence, legal uncertainties and new problems.

However, the balance has to be preserved and we have to assume that if it takes new laws to achieve it, then new laws we will see.

Bottom Line

A simple, clear cut and shorter copyright term would probably suit more artists than a longer, ambiguous and limited one. The only copyright holders that benefit from such a system are artists with the resources to navigate the potential minefield and works that will continue to generate revenue decades down the road.

The copyright system is and always has been about a balance between creators and the public, if that balance becomes askew, once can rest assured that new laws will be passed to correct. Blindly trying to expand copyright law, especially through term extensions, there will be concessions elsewhere.

It’s time for artists to stop thinking that more is always better and decide what balance would work best for them while still maintaining the spirit of what copyright law is supposed to achieve.

If we can do that, we might finally bring some sanity to copyright on the Web and everyone would be a little bit happier.

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Though one of the organizations that protested against the 2006 version of the orphan works bill, the American Society of Media Photographers, a prominent trade group for members of the photography industry, has thrown its support behind the current version, especially the version currently before the House.

According to the ASMP, the new bill offers much better protections for photographers than the 2006 version and that “the House bill is about as good as photographers are ever going to get.”

They go on to say that:

“If the bill is not passed this year, it will return in the next session of Congress, when at least one of the crucial subcommittees will be under different leadership. Based on the track records of the legislators who are in line for leadership, it is almost certain that they will write legislation that is far less friendly to copyright owners than the current leadership.”

At an ASMP event in April, Vic Perlman, the general council for the organization, gave a talk at one of their forums about the orphan works legislation and why the ASMP supports it. He also gave advice for artists, which closely mirrored my own.

The video is embedded below.

Obviously this kind of support behind the bill greatly increases the chances of passage. It was trade groups such as the ASMP that were largely responsible for the first bill’s death. However, other trade groups, including the Illustrators Partnership of America, Advertising Photographers of America and American Society of Illustrators Partnership, do not share the stance of the ASMP and continue to oppose the legislation strongly.

I will update everyone on the bill as it progresses. However, this will likely be the last item on orphan works for a while, at least until there is progress in the two bills.

Hat tip: Special thanks to Jim M. Goldstein for the heads up.

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In my most recent post about the proposed orphan works bill, I promised that I would draft a letter to send to representatives in Congress about the legislation. The goal being to craft a letter that opposed the bill on rational grounds, rather than adopting the apocalyptic views many have taken of the bill.

I’ve attached a draft of this letter below and I highly encourage anyone who is considering writing their local representatives about this issue to look through it. You are free to copy, resend and otherwise pass on this letter. You may also download the RTF file below and distribute it freely.

Also, feel free to make any modifications and/or adjustments you deem fit. Also, if you have any suggestions on how to improve the letter, I will happily entertain them. I consider this very much a living project. 

Download the RTF

The Letter

Dear REPRESENTATIVE NAME

As an artist that depends upon copyright law for his/her livelihood and a member of your constituency, I wanted to draw your attention to recent legislation that has been proposed in both the House and Senate that could drastically impact my rights as an artist and my ability to protect my works.

The orphan works legislation, bills S. 2913 and H.R. 5889, propose changes in the way copyrighted works are handled in the event that the copyright holder can not be located.

Though the two bills have some notable differences, they are similar in that they allow the copying and use of an unidentified work, known as an orphan, as long as the would-be infringer performs a search for the copyright holder and is unable to locate him or her. 

The bill is designed to address an issue where many works are lost simply because it is illegal to preserve them. Copyright protection has been extended to a point where it often outlasts the medium the work is in, meaning that the work is destroyed before it is legal to copy and preserve it.

However, the current orphan works legislation not only fails to adequately address this very real issue, but it also fails to provide adequate protections to currently working artists who depend upon reasonable copyright protection to make their living.

Consider the following issues with the current proposals:

• Universities and other public institutions will be unlikely to exploit orphan works for preservation due to the legally ambiguous definition of a “qualifying search” that could open them up to lawsuits.
• Content creators, especially visual artists whose work routinely is used without proper attribution, will be forced to register their works with various databases, likely at great expense, to avoid having their work becoming an orphan. This is despite the fact that such formalities are not allowed under both the Berne Convention, of which the United States is a signatory, and the Copyright Act of 1978.
• Artists may find their work being used for commercial purposes, including uses they are ethically and morally opposed to, simply because they could not be identified easily as the owner.
• Copyright holders may find that their existing registrations with the Copyright Office are meaningless as both their remedies under the orphan works act would be limited and the USCO registration system does not provide a means for third parties to locate copyright holders of visual works.
• The bill introduces still more confusion and ambiguity into copyright law, already one of the most misunderstood and confusing areas of law in the United States.

However, it is not just artists that are opposed to the new legislations, many who openly seek copyright reform have qualms with the legislation as well.

For example, Professor Lawrence Lessig, who has campaigned heavily to save orphan works and even petitioned the Supreme Court to have the Sony Bono Copyright Term Extension Act of 1998 overturned due to this very problem, is against the legislation as well.

On his site, Professor Lessig derided the 2006 orphan works bill, which is very similar to the current ones, saying that it “both goes too far, and not far enough.”

Lessig proposed many changes to the bill to make it both more practical and better protect current artists. However, none of his proposed changes were considered nor do they, or any changes similar to them, appear in the current bills.

Simply put, the current orphan works bills not only fail to solve the very real and very serious problem of orphaned works, but they put hard working artists, such as myself, at risk of losing rights to their work.

With that in mind, I am writing to ask that you vote against this bill and that you do whatever is within your power to ensure that it does not pass. Both current artists and the orphan works this bill seeks to protect are going to depend upon finding an effective and fair solution to this problem.

However, that can not happen should this bill pass.

Thank you very much for your time and consideration.

Yours truly,

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photo credit: eob

Ever since the orphan works bill was introduced, artists have been very busy blogging about the bill, passing around petitions and organizing campaigns against it.

But while all of that is great and the renewed interest in copyright law among the creative community is a very positive thing, much of the tone this backlash has taken has been very unrealistic. Some have said the orphan works bill will cause artists to lose all rights to their work, that it would allow anyone, including plagiarists, to use your work with imunity and make it impossible to earn a living as an artist.

As horrible as these things sound, they are also patently untrue and ignore many of the realities of the bill and the copyright climate today. There are many legitimate reasons to protest this bill, but the fearmongering and exaggeration helps nothing and only damages the arguments against the bill.

If you’re against the bill, it is worth your time to look at its likely impact from a realistic standpoint, otherwise, your case against it is built upon sand.

The Sky is Falling

Many artists seem to have decided that the orphan works bill is something of an apocalypse for their profession and that, should it be enacted, that they will lose all rights to their work and all ability to profit.

However, what the orphan works bill does is create an affirmative defense in the event of a copyright infringement suit. It enables a party to use a work, under a set of guidelines,  and avoid being liable for copyright infringement.

Affirmative defenses are pretty unusual in most areas of law but are actually pretty common in copyright. In short, an affirmative defense is a defense where the burden of proof is on the person claiming protection under the defense. This flips the usual burden of proof relationship on its head, requring that the defendant, not the plaintiff, make the case.

A good example of another affirmative defense is fair use. If there is a copyright dispute and the allegedly infringing party claims fair use of the work, they have the burden of proving that the use was fair, rather than the plaintiffs proving that it wasn’t. This is a very steep hill to climb legally and has caused many borderline cases to go in the favor of the plaintiff, even if a solid fair use argument can be made.

The problem is that, with an affirmative defense comes a great deal of legal uncertainty. The person using the work, just as with fair use, has no way to be certain how a judge would rule in the event that the infirngement went to court and, since they have the burden of proof, they know they have the uphill battle.

This legal uncertainty is why corporations routinely pay to license works that they only want to make a fair use out of. It is simply cheaper to pay the license fee than to risk being sued and losing. Only cases where the fair use is clear-cut do most take the risk.

Such a legal climate is likely to exist should the orphan works bill pass. Though corporations and individuals could feasibly avoid paying for a license to a work by claiming it an orphan, they would have the burden of proof in showing that it was. They would have to prove that they performed an adequate search, meaning they would have to document and verify it, they would have to prove that they provided what information they could and that they met all of the other stipulations the law provided.

Corporations are not going to be eager to take this kind of risk and neither will other copyright-savvy users. With so many works that can be licensed free and clear with either little or no money, jumping through a series of hoops in the hopes of establishing an orphan works case that could easily get shot down in court seems both tedious and risky.

Though some people will undoubtedly try to abuse the orphan works bill, it seems likely that, early on especially, use of it will not be widespread. The risk and uncertainty will be great and no one wants to be the test case.

The Current Climate

Though the ability to claim damages for copyright infringement is an important lever at times, the vast majority of copyright infringement cases, especially on the Web, don’t center around seeking damages. Instead, they focus on stopping the infringement.

However, the orphan works bill does not in any way impact the ability of an artist to stop an ongoing infringement. In fact, should the artist come forward, even in a clear cut user of an orphan work, they have the right to stop the infringement.

This has two critical elements to it:

1. No Change in Powers: The simple fact is that, if you do not routinely register your works with the United States Copyright Office, there is little to no way you can practically sue for copyright infringement. In those cases, the best you can hope for is to stop the infringement and, in those cases, the orphan works bill is moot. You have the same powers as you did before.
2. Leveraged Negotiations: In the event that someone uses a work as an orphan in a commercial setting and the rightsholder comes forward, they not only can claim a license for the use, one set by industry standards, but they can negotiate future use of the work. Rightsholders would have an upper hand in such negotiations and this is yet another risk that the user of the orphan work would have to weigh.

The orphan works bills do strongly favor non-commercial use, especially relating to archving and preservation, which was one of the main goals of the bill. Though commercial use is allowed, it comes with serious strings and risks.

The truth is that, with millions of works licensed in either inexpensive stock libraries, Creative Commons Licenses or in the public domain, those seeking free/cheap content to use have much safer and much easier sources available.

Your average artist, especially one that has no plans to file suit over infringement, have exceptionally little to fear in the orphan works bill. This isn’t because the orphan works bill doesn’t take away some rights, but because the rights it strips are ones that are impractical to enforce for about 99.9% of all visual artists today.

Reasons to Dislike the Bill

This is not to say that the bill is a wonderful piece of legislation that every artist should get behind, just that the doomsday scenarios are likely not gong to come to pass. There are still many reasons to dislike this bill and protest it.

Off the top of my head I could think of the following five:

1. Copyright Formalities: Since 1978, artists in the U.S. have been told that they do not need to do anything to ensure that their work receives full protection under the law. While that has never been completely true, the orphan works bill could give rise to new copyright formalities, including, quite possibly, private copyright registration databases. This could result in both money and time being sapped away from artists as they take extra steps to ensure that their works are not orphaned.
2. Misses the Target: The orphan works problem is generally viewed as dealing with older works that are deteriorating. This bill would lump works both days and decades old together under the same umbrella, with the same possibilities for reuse and abuse.
3. Poorly Defined: The bill makes only the most vague guess at what would constitute and acceptable search or even an orphan work itself. This puts artists and users alike in fear.
4. Allows Commercial Use: The goal of fixing the orphan works situation was not to merely kick a slew of work into the public domain, but to ensure that works are not lost due to their lengthy copyright term. Allowing commercial use makes little sense, even though the bill does show preference to non-commercial use. Such uses are typically less about public good and preserving culture and more about the bottom line.
5. Added Confusion: Copyright law is already confusing enough without the help of extra complication. This bill will only lead to more myths, more misunderstandings and more conflicts. Focus should be placed on simplifying copyright law, not making it more nuanced than ever.

So while I find myself opposing the bill, I can not share the visions of artistic doomsday that many have claimed to foresee. The orphan works bill has many problems with it and should not be passed in it either of its present forms, but the tales of impending doom are greatly exaggerated.

Conclusions

Sadly, as well-intended as they are, the doomsayers are doing nothing to actually prevent passage of this bill. It is too easy for our leaders to dismiss their rantings as misinformed and/or unreasonable.

Though calling up your representatives and letting them know that you oppose the bill is important, it is equally important to present sound, reasoned arguments.

In 2006, this bill was defeated by a coalition of visual artists working together to target their representatives and encourage them not to vote for it. There is a strong chance that will happen again, but only if the claims can be supported.

To that end, over the next few days I am going to write a letter to my representatives and will post a copy of it on this site when done. Anyone will be free to copy it and send it to their congressmen as well.

Further Reading

Six Misconceptions About Orphaned Works
The Orphan Works Proposal (2006)

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jonb1324cdr

Yesterday, both the U.S. House of Representative and the U.S. Senate introduced versions of the orphan works bill. Both the Senate version, S.2913, and the House version, H.R.5889 are very similar in nature and closely mirror the Orphan Works Act of 2006, which failed to pass.

According to attorney Joe Keeley, the two bills are very similar to the 2006 one. Both focus heavily on the performing of a “Reasonably Diligent Search” for the copyright holder, which is now called a “Qualifying Search” in the new legislation, and both bills allow the user to avoid paying statutory damages or attorney fees if they use the work after performing such a search and are unable to locate the copyright holder.

However, the bills are not exact carbon copies of the 2006 leglislation, both offer some differences that need to be looked at and weighed.

Differences in Senate Version

The Senate version of the bill is by far the most similar to the original. It offers only two major changes when compared to its 2006 counterpart.

• A study of the current copyright registration system, to be completed within two years.
• A requirement that uses of orphan works be identified with a symbol, to be created by the Copyright Office.

The “meat” of the bill, the limitation of damages if the copyright holder can not be found after a resonable search, remains very much in tact. Though the bill, like its 2006 counterpart, puts a higher burden on commercial use, it does make the works available for such purposes.

Differences in the House Version

The House version of the bill is the more different of the two offering, several differences from both the 2006 legislation and the Senate version. The differences between it and the 2006 version are as follows:

• A delayed effective date for visual works. Would start either in 2013 or after the databases or after two searchable databases are available to the public for visual works.
• A study of the current copyright registration system, to be completed within two years.
• Those seeking to use an orphan work must first file a “Notice of Use” with the Copyright Office.
• A requirement that uses of orphan works be identified with a symbol, to be created by the Copyright Office.
• In cases where a copyright comes forward after an orphan work is used and the work was previously registered, courts can take into account the registration and may value the work higher, awarding more money.

It is clear that the House version is designed to placate the fears and worries of visual artists, who were primarily responsible for the failure of the first bill. It delays the effective data for visual works, adds extra burdens on those seeking to use an orphan work and can award greater damages if the work is properly registered with the USCO.

However, as with the house version, the overall effect is still the same. Though visual artists will likely find this bill preferable, I doubt that many will consider it an adequate effort to address the issues raised.

Some General Thoughts

Though I plan to talk more about this bill over the next few weeks, my initial thoughts are that the bill’s chances of passage are slimmer than many think.

Not only does the bill have strong opposition among visual artists, it also has very little support from copyright reformists, such as Professor Lessig, who deal heavily with the orphan works issue. The bill has no real champion among the people and even the RIAA has remained quiet on the issue since filing a comment (PDF) on the proposed legislation back in 2005.

While it is worrisome that they are attempting to “fast track” this bill, the first one died an inglorious death and this one seems likely to follow suit, with campaigns against it already mounted.

But while I do not think the nightmare scenarios that many visual artists are presenting are likely to happen, nor do I think much of the panic is justified, I agree that this legislation does create new headaches for copyright holders without providing much benefit to those that would seek to use orphan works.

Simply put, what this legislation does is provide little more than an affirmative defense against a suit for copyright infringement. Much like with fair use, the person making use of the work would have to prove that their copying was not an infringement. This will, inevitably, lead to a lot of legal gray area that will scare most people off from using orphan works.

It would likely be decades before this law was adequately tested in the courts to provide any certainty to those wanting to take advantage of it. Between then and the passage of the law, should it happen, there would be a long period of turmoil, for both copyright holders and those wanting to use/protect orphan works.

Conclusions

The orphan works problem is very real and it was created by a combination of ever-extending copyright protection periods, a registration system that doesn’t effectively register anything and media that can’t outlast the copyright term.

These issues have to be addressed if we’re going to get a real solution to these problems.

But as bad as this legislation is in many ways, it is actually among the best copyright legislation we’ve seen in the past 20 years. At the very least, we have to give the USCO and our Congress credit for not simply bowing down before big copyright holders and for addressing a real issue, albeit in a very imperfect way.

In short, copyright law is currently so messed up and beyond repair that it may be time to consider a full reboot, one that can actually address these issues and dozens of other problems with the current system.

In the meantime, I sincerely hope that we can do better than this particular orphan works legislation.

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jonb1324cdr

With the recent conversations about orphan works legislation, which is being opposed primarily by photographers, artists and illustrators, attention is being focused on techniques that can help ensure that visual works do not become “orphaned” easily.

To that end, many are looking visible watermarking, such as what the free Faststone Image Resizer provides, others are turning to invisible watermarking, such as Digimarc’s MyPictureMarc service. Still others, however, are getting back to basics and looking at embedding data in the file itself, using established protocols to display their personal info.

Fortunately for artists, there are programs that can easily embed copyright, descriptions, titles and other information into an image, all without altering it visually in any way and without any great demands on time or money.

In fact, Microsoft provides a great tool for editing this data and makes it available completely free to all users of Windows XP and Vista.

Introducing Microsoft Photo Info

Microsoft Photo Info is a free download and install. Once you’ve set it up, you use it by finding the images you want to add information to and right clicking on them, either individually or in a collection, and select “Photo Info”.

From there, explorer will pull up a window the proves the information that is currently in the image spread across several tabs. This information includes both the EXIF data and any IPTC data included in the file and can include a wide range of information including titles, descriptions, copyright statements and even URLs.

There are several features worth noting:

1. Collective Editing: You can edit the files individually or collectively if you selected multiple ones before hitting “Photo Info”. This is great for batching together large numbers of files.
2. Automatic Copyright: The program can automatically generate a copyright notice based upon your name and the date of the image’s creation.
3. Viewing Existing Data: Most digital cameras add a great deal of metadata to a picture before you ever see it. You can use this program to view the information stored and edit some of it.
4. Entry Recall: The program remembers your latest inputs and can call them back to make editing future images easier.
5. Support for Multiple File Types: Program edits both jpg and tiff files among others.

But while all of these features are useful and the variety of data available can and should be exploited, it is most important to edit the “Title” and the “Description” of the image as those are the ones most easily viewed by others.

Simply put, without Photo Info or a similar EXIF reader, most of the data will remain hidden. However, any Windows user, by simply clicking on the image properties, will be able to see those two elements very clearly.

With that information easily available, it will be difficult for anyone to say that the photo or image belongs to them or that they performed a reasonable search and could not find the copyright holder.

With the upcoming orphan works legislation looming, such an argument could be very important to make.

Why Do This

The reasons to mark your work using metadata are many. The most obvious is that it makes plagiarism very difficult to defend as the metadata is not likely to be changed or removed by someone just copying the image. All one has to do to prove their ownership of the work is right click the image and select “properties”.

More than that, however, it provides protection against the work becoming an orphan. The orphan works bill in 2006, which is likely be reintroduced, at least in part, would have made it so that, in the event a copyright holder could not be located after a “reasonable” search, the work could be used without permission in some circumstances.

It would seem logical, however, that any “reasonable” search would start with looking at the file itself. By embedding your copyright information into the file, you ensure that you are always identified as the copyright holder and never have your work become an orphan. Simply provide your name and some form of contact information and the work should be in good hands as the metadata is carried with it even if the file is copied.

However, the system is not perfect, there are problems with relying solely on metadata and many reasons why you should not make it your sole source of identification.

Limitations

Before you put your name and information in the EXIF data of your image, consider the following points:

• Anyone Can Change It: The same as you can use Photo Info or another EXIF editor to manipulate the metadata, so can anyone else. There is no way to “lock” a file so that no one else can make changes.
• Anyone Can Erase It: Metadata often gets erased from images, especially by programs that optimize images for the Web. Such programs often erase the data in order to save a few bytes in file size.
• Not For All File Types: Sadly, there are no such standards for PNG or GIF graphics at this time. The only Web format it works for currently is JPG.

But while these are definitely limitations to take to heart, these are not reasons to avoid using a free and easy tool to protect your work, especially when it does not negatively impact your viewers in any noticeable way.

Conclusions

With the orphan works legislation coming back from the dead and image reuse becoming more rampant, it makes sense to take a moment or two to protect your work, especially considering how much time and effort went into creating it.

Even if this system is far from perfect in its protection, it is not often that we have something that is free, easy to use and does not harm the viewer experience. Even if it only provides a small amount of protection, it makes sense to go ahead and try it.

Visual artists, especially those that post to the Web, already have a very tough time protecting their works and need all of the help they can get to make sure that they don’t lose total control of their creations.

Have a copyright question? Need some advice? Visit CopyByte.com for information on how we can help you.

jonb1324cdr

I am receiving numerous reports that the controversial orphan works legislation is set to be re-introduced to Congress sometime in the next few days. A backlash against the proposed legislation has already begun and others are lining up to protest the bill after it is introduced.

There is very little information at this time as the bill has not yet been introduced. However, early reports are that it looks very similar to the bill that was introduced, and defeated, in 2006. Back then, it was an uproar by artists, photographers and illustrators that resulted in the bill’s failure.

I am going to be following this bill very closely as it is introduced and makes its way through the legislative process. In the meantime, please feel free to read my previous works on the matter, which were written regarding the 2006 bill, below:

Punditry: The Orphan Works Proposal
Is Your Work an Orphan? (Part One)
Is Your Work an Orphan? (Part Two)

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jonb1324cdr

Sometimes the biggest challenge to protecting your copyright is proving the work is yours in the first place. Though the United States Copyright Office provides the only official service, that makes available additional legal remedies, it is both pricey and slow, making it a waste for anyone who anyone who isn’t actively looking to go to court.

To fill the gap between the expensive and slow USCO system and the reality of the Web, several unofficial non-repudiation services have cropped up including Numly and Registered Commons.

However, these services have struggled to balance the elements a non-repudiation service. Numly, for example, is easy, fast has great plugins but the price point drives many away. Registered Commons, on the other hand, is thorough and free, but difficult to use.

However, a service known as My Free Copyright hopes to improve upon these systems not only by providing a completely free service, but one that is a better fit for your traditional blogger.

Fortunately, they seem to be well on their way as their service already offers some very enticing features.

How it Works

MyFreeCopyright works like any other non-repudiation service. After registering for an account, through a very short and simple form, you are then taken to a screen that allows you to choose what kind of work you want to protect.

There you are presented with three options.

The first lets you upload a file for registration, including, audio video and eBook files. The second option will allow you to registered a blog or a podcast via the site’s RSS feed. The third reads an HTML pages, extracts the text from it, and creates a registration similar to the one it creates for a blog entry.

If the item protected is a file or a HTML page, a single registration is created. This registration includes the text of the page, if an HTML work, a hash of the registered content, a date/time stamp of when the work was submitted and a My Copyright Number, or MCN, for easy reference.

If the registration is an RSS feed, then all of entries in the feed are indexed separately and all future updates to the feed are picked up automatically on a daily basis. Each entry is given its own registration, including MCN, hash and date stamp.

With each registration, you can opt to set the registration to private, meaning only you can view the content, and assign a Creative Commons License to the work.

The theory in all of this is that, if there is a copyright dispute regarding one of your works, this service can help support your claim of ownership by verifying that it was created and uploaded at a certain date and time. Anything that comes after will have an uphill battle to prove its authenticity.

Though it doesn’t provide the legal protections of a USCO registration and such a registration would still be necessary to sue in a Federal court, MFC can still provide some verification of ownership, especially if the dispute does not head to the courtrooms.

Lots to Love

When looking at MFC as a service, there are a lot of things to like about it.

First and foremost, as the name suggests, MFC is completely free. The site is free to use for unlimited registrations and has no advertising on the site. Though the owner of the site, Matt Whittaker, has said he plans to offer some paid services in the new year, he has promised to keep the basic services free forever.

Second, the site interacts with RSS feeds automatically, enabling bloggers to have “set and forget” registrations without having to install a plugin. This avoids a complication that is shared by both Numly and Registered Commons. This seems like a natural use for RSS and, though the system could be improved, the concept is solid, especially for those with full feeds.

Third, the service provides a simple button and badge that you can include in your site, or even embed into your RSS feed. This can be a great way to publicize your protection and, if you don’t wish to use the button, if you can use a text link to the MFC page for your site. If you’re using this on an RSS feed, a visitor can rummage through your entire blog by month, not just one entry at a time.

All in all, a visitor to the MCF registration page will find it much better organized than pretty much any other non-repudation service.

Finally, the site itself is very easy to use and very straightforward. You can easily register in a few seconds and set up your first item for protection immediately after. At no point did I find myself stuck or lost when registering various works.

However, though the service is solid, this isn’t to say that it is perfect, there are still some issues with it, as minor as they may be.

Caveats

Before jumping at the chance to use MFC, there are a few things to bear in mind.

First, the RSS service, though convenient, could be improved. As it functions right now, you either have to manually log in and have the service check your feed, up to once per hour, or wait and have it do it during the automatic check, which takes place late evening Eastern Time.

Though manually updating the feed is a minor inconvenience, requiring you to log in to your account and click a link, it is easily forgotten. However, the automatic update can occur as much as a day after the post goes live, often well after scrapers have gotten ahold of the content and republished it.

This feature would be better expanded either through the development of a plugin, which Whittaker has said he is working on, or, even more ideally, through a pinging service that bloggers can add to be automatically updated.

Second, the simplicity of MFC means that there are no real advanced features to the site. This limits the amount of meta data affixed to the content itself such as author, licensor or copyright holder contact information. This might limit the effectiveness of the service for dealing with orphan works issues, if only marginally.

Third, when registering your work, you need to be careful to set your registration to “private”. MFC, by design, allows search engines to index its registration pages including the content on them. This can create duplicate content on the Web and cause some of the same problems a non-repudation service is supposed to help deal with.

Finally, during my retesting of MFC today, I noticed a few minor bugs in the system. The first being that my Creative Commons license on my PT registration was not being affixed to new entries, just old ones, and that the entries were being displayed out of order. Newer entries were being posted at the end of the line, something that is counter to how most blogs present information.

(Update: The two bugs mentioned above have been fixed, see comments below.)

However, these issues are relatively minor and all of them can easily be addressed in updates of the site. Overall, MFC has the right idea and is headed down the correct path.

Conclusions

MFC is targeted at your everyday blogger and Webmaster who doesn’t need an extremely powerful non-repudiation system and is willing to trade a few advanced features for simplicity and price tag of free.

Though the issues with RSS updating may limit the service’s functionality in some cases, it is still useful in most instances where a human plagiarist is involved. Fortunately, those are the cases most likely to become a major dispute requiring non-repudiation.

For bloggers seeking a fast, easy and free non-repudiation service, MyFreeCopyright is an almost ideal choice.

Considering that it is easy, free and automatic, there is little reason not to use it. Since you don’t have to paste the MFC information to your site in any way, no one has to know that you are even using it.

All in all, it is an extra layer of protection that can easily be added to any site or blog. It makes sense to protect yourself as much as possible and, if you aren’t using another non-repudation service, this may well be the one for you.