Wow–a fresh new blog for me to jot down thoughts. Yes, this is my first blog posting since joining PicScout as VP of Marketing. My formal “public” announcements came on my personal blog last week, but I’ve been so busy getting things together for the CEPIC conference, that I haven’t had much time to post to this one!

So, now that I’m here, I’d like to mention that we’re going to CEPIC again this year (again as a sponsor). And this time, we’re participating in a very important discussion. One that affects the entire world: the Orphan Works Act.

Yes, that again. Last year, we spoke at a congressional hearing on the subject, but that was in the USA. This time, we’re speaking to a European audience. Giving this presentation is Jeff Downey, Head of Global Sales at PicScout, who has been invited to CEPIC’s Orphan Works in Practice Panel (June 5, 11:15 AM). He will also participate in MILE’s Know Your Rights Conference (June 3, 3:00 PM)  where he will present PicScout’s Image Tracker service, together with our German legal partner, Marc Hugel.

Unfortunately, I won’t be there because I will be leading some photo-business seminars in Montana at exactly the same time. (Sorry, I had a prior commitment.)

But let’s get to the main point:

CEPIC’s website lists as its primary objective, “copyright protection for photography.” Indeed. But unlike many other things photo-related, copyright is one that extends well beyond EU countries, especially when the USofA starts throwing its weight around, as it is currently doing with the Orphan Works Act. As I’ll soon discuss, this is a global issue, not just an EU one, which is why it is taking center stage in photography blogs and discussion forums. And, as is their duty, fear-mongers are spreading the word: “Just say No!”

Why is the OWA so important everywhere? Unless you’ve been hiding in a cave, here’s the scenario that has everyone’s undies up in a bunch: someone finds your photo on some website somewhere, and they want to use it for a marketing or advertising piece, but they have no idea who owns the photo. Under current law, if they publish the photo and you find out, you could sue them for copyright infringement. Under the provisions of the OWA, you could still sue them, but they could be protected from paying damages if they could claim that they did a “diligent search” for the image’s owner, but were unsuccessful.

Well, that’s the fear, anyway.

But the reality is quite different. In fact, several things are at odds between the myth and the reality of the OWA.

To begin, we start with the most specific item: the text of the bill says that if the publisher of the work has done a “diligent search,” then the OWA would provide protection from statutory damages in an infringement claim.

Why is this important? First, if we’re talking about copyright claims in the USA, unless you register your photos with the copyright office, you can’t claim statutory damages anyway. In other words, if you don’t register your photos with the US copyright office, your claim against any infringer–with or without the OWA–would be based on calculations that are unaffected by OWA. It’s as though it never existed. (Most non-US countries don’t have statutory damages, so the OWA would have no relevancy there either.) And, since only about 5% of pro photographers or stock photo agencies bother to register their works with the US copyright office, 95% of the photo industry would be almost entirely unaffected by OWA.

True, there is one caveat to this that only a handful of legal observers have ever mentioned (and never in photo circles): claims of profits. Under the 1976 Copyright Act, copyright holders can sue for profits gained as a direct result of using a work, even if it hasn’t been registered with the copyright office.  There is ambiguity as to whether the various versions of the bill allude to damages other than statutory damages, such as “claims of profits.” If so, the OWA could affect some claims made by copyright holders. However, only a tiny fraction of image uses are ever directly linked to profits anyway. And even then, the OWA already gives judges latitude in such decisions by including text that says, “the court can consider what the effects of registration would have been.” So, this technicality is not something that warrants much concern.

It’s still more relevant to point out that 95% of photographers don’t register their works. So, for them, the OWA is inconsequential.

Ok, so what about that 5% of photographers that do register their works? Do they have something to fear from infringers that could hide behind the OWA and escape statutory damages?

In this case, the OWA provisions are even better: the provision of ‘diligent search’. To many, that phrase is ambiguous: how does one do a diligent search? But this confusion is because they are reading that line by itself. You can’t do that. It’s tied directly to a part of the bill that requires the copyright office to create a “certification process for the establishment of an electronic database to facilitate the search for pictorial … works that are subject to copyright protection under title 17, United States Code.”

Notice that I made the word “an” stand out visibly, by using three fancy font modifications: bold, italic, and red. I did so to illustrate a fact that just about everyone overlooks: there is only ONE such database!

Some have created a myth that there will be many registries and databases, each containing some subset of copyrighted works. In a world with an unknown number of possible copyright registries, how do you define what a ‘diligent search’ is? Would a potential infringer only need to query ’some’ of these registries? The bill doesn’t say! Therefore, it must be risky!

Relax. The bill doesn’t define a “diligent search” because it doesn’t need to: There is only one copyright database. You only need to search “the one.”

And besides all that, there’s another important fact: there is no way to register a work with the copyright office unless you do it through the copyright office. And if you register your works, it’ll land in the one database that matters. Third-party registries would not contain copyrighted works. If they did, then those works would already be in the ONE copyright office’s database too. If those thired-party registries contain works that are not registered, they do not enjoy the “statutory damages” provisions of copyright law. Once again, the OWA would be entirely moot for them. (Remember, only registered works have any relevancy to the OWA.)

Which brings us full circle to the center of all this controversy: what constitutes a diligent search? Knowing that there is only one database, this question very easily answered: if you’re looking to see if a particular photo is a registered work, then you simply submit the photo to an image-recognition engine that matches the work with those in the official database. You will get an instant resolution to the query: it’s either there, or it isn’t.

Diligent Search: Done. Took all of a second.

The elephant in the middle of the room is, “Who’s going to index the copyright office’s database?” Since it’d be public, anyone could. And obviously, PicScout could. It’s not just indexing it that matters, but providing the image-recognition engine that would do precise matches that makes the whole process fast, easy and simple. We could take care of this whole mess in about 15 minutes. (Ok, a bit longer. It’s a bit of a drive to Washington DC.)

So, this is really where things get very, very beneficial for copyright holders:

• Register your works with the copyright office.
• Once the OWA bill passes, the copyright office will create a database so your works can be found.
• Once online, your photos can exist anywhere and everywhere in the whole big, fat, wide world. And if someone gets their hands on one, and wants to publish it in a way that would require paying you a license fee, the OWA would compel them to do a “diligent search,” which would instantly lead them directly to you - swoosh! Took all of one second.
• Big money comes your way.

So, let’s review:

If you never register your photos with the copyright office, then all this hoopla about the OWA is entirely irrelevant. You already have very little protection (or recourse) against infringers, and OWA doesn’t make it worse.

If you do register your works, there is no downside to the Orphan Works Act. In fact, you have gained a new sales opportunity, one that cannot be compared to any other.

And if you’re not a US-citizen, all the more reason to support OWA: you will get more protection of your own works in the US than you ever had before. But better still, your own country might even adopt very similar legislation.

Dan