Is Your Work an Orphan? (Part Two)

(Note: This entry builds upon part one of this series. If you are familiar with the concept of orphan works and the background behind the bill, you can most likely skip that post and move straight into this one. if not, you should probably take a moment to read it before moving on.) 

Avoiding Orphan Status

In order for a work to avoid orphan status, the copyright holder must be both identifiable and either he/she or someone authorized to make decisions on their behalf must be able to be contacted. This means that, even if one knows the name of the copyright holder, if the person nor a decision maker can be located and contacted, the work can still be labeled an orphan and used accordingly.

It then becomes imperative that one makes themselves as easy to locate as possible. The goal is to make it so that anyone conducting a "reasonably diligent" search will be able to locate you, even if they aren’t necessarily hoping to find the owner.

With text works that’s fairly simple. Any reasonable search would probably involve punching the work into a search engine and that would almost certainly reveal who the owner is along with some contact information for them. With visual and audio works, the matter becomes less clear. Searching for such works is very limited and the tools are relatively ineffective. 

Nonetheless, there are several steps that one should consider taking immediately in order to avoid their works inadvertently become orphans:

  • If you have your own site or otherwise post content on the Web, ensure that you have some kind of contact information available. (Note: You can still post anonymous and pseudonymous works so long as contact information is available) This information can be anything from an email to a postal address. If you own your own domain, theoretically, this information is already stored in your whois information
  • It is very important to maintain some kind of presence on the Web. If you have a site, post content to it and then take it down entirely, any content that you had previously could be orphaned. Maintaining a small site with contact information is inexpensive and should be a part of any shut down strategy.
  • With non-textual works, it is important to take advantage of meta data in the file formats such as EXIF data in JPGs and ID4 tags in MP3s. Though this data can be stripped by someone who is malicious. it provides a great deal of protection if your work gets passed around and lands far away from home. Also, many malicious users will not know how to or think to strip such information.
  • Visual artists need to look harder at watermarking software to protect their images online. Many packages are available for free that offer a wide variety of watermarking forms. Also, companies like Digimarc offer paid solutions that can help.
  • Printed works and other physical creations will need to be credited as much as possible. Writers should byline their works, artists should sign paintings and photographers should mark on the back of printed images, CDs will need to be labeled and their content submitted to databases, such as Gracenote, for automatic detection.
  • Registering a copyright with the U.S. Copyright Office, though still not a requirement, becomes an even better idea and adds an extra layer of protection.
  • It’s important to keep contact information as valid as possible. File change of addresses whenever you move and forward your email as you change accounts. If contact information loses validity, it could be a sign that a work is orphaned.
  • If possible, make sure your work appears in as many trade databases as possible as they will likely be one of the first places someone searching for a copyright owner will look.
  • Though it is a somewhat morbid thought, be sure to mention your copyrights in any will you create. An unwilled copyright is at grave risk of becoming orphaned.
  • Remember, all that you have to provide is valid contact information. You do not have to respond or even necessarily check to see if anyone has tried to contact you. Where an email that is bounced or a letter that is returned might be considered proof of an orphaned work, a simple lack of a response is considered, by law, to be a "No".
  • Finally, remember this maxim. Make sure that people know the work is yours and how they can contact you regarding it. If that information is readily available, it can never be orphaned.

Though the solution is simple enough, it can be a daunting challenge when looked at over the long haul. Making sure that oneself is available is easy in the here and now, but what about months, let alone years, down the road?

The solution might lie in a copyright service that’s been mentioned here before and could find itself providing a very different kind of copyright protection.

Numly as a Caretaker 

Numly, which I previously wrote about under it’s old name, ESBN,  provides a Electronic Serial Numbers (ESNs) for digital works. These numbers are used to provide non-repudiation proof of copyright, provide timestamps for works and real-time verification of ownership. In short, it works like a giant database of copyrighted material complete with time stamp of the works creation and all pertinent contact information for the piece.

The initial idea behind Numly was to provide support in the event of a copyright dispute between two or more authors, however, the nature of the service makes it a powerful tool in dealing with the orphan works issue.

For starters, Numly Numbers, also known as ESNs, are free, can be obtained instantly and can be applied to any content that can be copyrighted including text, images, movie clips and audio.

Text works can be appended with the ESN for instant verification, other works can have the number embedded into the file either through meta data or steganography, the art of hiding a message in an unrelated file.

All verification pages, in addition to the content of a textual work and the description of a non-textual one, include contact information including name, site and email. This contact information can be updated At any time without changing the ESN.

However, even if the contact information does become outdated, Numly itself provides a way to contact copyright holders through a built-in secure messaging system. That method of contact will always remain valid, will never "bounce" a letter and will always be accessible so long as you can recall or obtain your password.

For those seeking a copyright holder, the entire Numly database is searchable so your work can be located through it, along with your contact info, even if your site has been taken down. If you wish an ESN to remain hidden for a time, you can mark it as private and change that distinction later.

Finally, Numly provides many ways to create ESNs including through their portal, their Firefox Extension, Wordpress Plugin and Mac OSX Widget.

In short, Numly provides the following things:

  • A numbering system that provides instant verification of ownership
  • A database that is easily searchable by those seeking to locate a copyright holder
  • All pertinent identifying information and contact information on the copyright holder
  • A perpetual means of contact, even if other contact information becomes obsolete

What this means is that Numly can, potentially, become something of a babysitter for your work, helping to keep it from becoming an orphan, long after you have forgotten about it and moved on.

While it is not a perfect solution, especially considering that it would need to achieve a critical mass before becoming a likely search destination, it provides a great deal of added protection against the orphan work clause and is almost certainly the best solution out there, especially for the price.

Some Unanswered Questions

Though much of the law is very clear in its intent, especially when one reads the full report and the dialog that preceded it, there are still some elements of the law that are unclear that have me concerned about unintended effects of the law.

First, there is no guidance about what is to happen when the copyright owner of the work is in dispute, for example, through plagiarism. While it seems highly unlikely that the act would allow anyone to declare a work an orphan so long as someone claimed the copyright to it and could be contacted, even if the person was misleading others about the nature of their ownership, there is still no clear guidance and this area is very much open to interpretation.

The fear is that someone looking to reuse a work is going to discover that several people claim ownership of it and, despite their best efforts, can’t distinguish who’s right. They will then decide that it’s an orphan work because they can not, with any certainty, locate the copyright holder and contact him/her. 

Logic and decency would indicate that the party would have to either be forced to wait until the dispute was settled or enter into an agreement with one of them, knowing the likelihood of a suit from the other. However, the law makes no mention of this type of situation and how it would apply.

However, the biggest question seems to be one of how this law will work in the real world. If the law is applied in court and used in the manner that it is intended, the negative consequence to copyright holders would be minimal. However, if decisions regarding it are poor and people use it unscrupulously, it could be disastrous.


There seems to be very little debate that there is an orphan works problem and that some action needs to be taken. Despite that though, this law remains mired in controversy, generally praised by the public and condemned by many artists, especially those that work in visual media where search is difficult.

In the end, how you feel about this law probably depends mostly on how you envision it will be used and that, in turn, will depend mostly on how ethical you feel those who seek out orphan works will be.

Nonetheless, the only thing that is certain about this law, as with any new law, is uncertainty. Thus, it makes perfect sense to take some small steps in the here and now, before the law is even passed, to help head off any potential negative effects of the law.

Considering how easy many of the steps are, it would almost be foolish not to even if there was no threat of an orphan works law. After all, making it easy to contact a copyright holder is rarely a bad thing.

[tags]Plagiarism, Content Theft, Copyright Infringement, Copyright, Orphan Works, Copyright Law, Intellectual Property, IP[/tags] 

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