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Orphan Works Legislation

ORPHAN works legislation caused a bit of a stir in the US when an attempt was made to introduce it. The push to do so has petered out – for the time being. Now, though, the EU has launched its own bid to put in place rules governing the use of intellectual property whose creator is unknown.

The EU’s proposal is to allow public institutions to use orphan works in their collections without payment. Given the pressures already on photographers to give up their copyright in their work, such a law could, if implemented without proper forethought, further erode their position. With the help of specialist intellectual property lawyer Linda Scales, the IPPA recently made a submission to the Department of Jobs, Enterprise and Innovation raising concerns about such legislation.

Photographers are particularly susceptible to having the rights in their work stripped from them. In particular, where authors of books, for instance, are able to exert their moral right to be identified as the creator of their writing, photographers are rarely afforded this courtesy. We can all point to instances in which our work was used without our name appearing beside it. Worse, as Linda Scales highlighted in her submission, “Commercial and public entities, when commissioning photographs, demand a moral rights waiver almost as a matter of course.”

Matters aren’t helped by the ease with which metadata can be stripped out of a digital file. Even if you embed your details, there is no guarantee they will travel with a file throughout its lifespan, increasing the likelihood the photograph will be orphaned.

It won’t come as a surprise that the IPPA feels strongly that “any proposal which involves the use of orphan photographs should be preceded or accompanied by appropriate action to ensure that it is possible in future to identify the authors of photographs.” To achieve this, the IPPA is insisting that a photographer’s paternity right in their work is made unwaivable by law. At the same time, the association opposes any proposal to make orphan works available while the basic conditions for photographers to assert their rights are remain as ineffective as they currently are.

One of the key parts of the proposed directive permits public institutions to put material online without any conditions attached, without the application of effective technological measures, and without anyone to monitor or pursue unauthorised uses once they are online. Problem is, once photographs appear on a website, it is impossible to protect them from being harvested for unauthorised use. Retrospectively recalling them from the worldwide web should the copyright holder step forward is not going to be possible. The damage will have been done.

Worse, the proposed legislation would permit the use of orphan works without payment of remuneration by the institutions when acting in pursuit of their “public interest mission”. That is a very broad term. In reality, it can cover pretty much any activity. The IPPA is keen on a tighter definition and the stipulation that such use should be non-commercial.

Even agreed commercial use of such works, with retrospective remuneration should the author or rights holder come forward to claim their orphaned work, could be problematic. The current copyright regime in Ireland lacks any suitable framework to accommodate such a mechanism. Ireland also lacks any kind of database or database manager that could catalogue and maintain an overview of orphaned works.

The whole issue of the proposed orphan works legislation is muddied somewhat by the fact that it doesn’t mention individual, standalone photographs aren’t mentioned. In fact, you have to dig a little in the draft text to find any reference to photography at all. It looks as if, certainly initially, only photographs embedded in published literary works that are themselves orphan works will be affected by the directive.

The IPPA has raised a trio of concerns in that regard. Firstly, the indirect manner in which embedded works are referred to in the proposal is unsatisfactory. If the intention is genuinely to include these works, specific provision should be made in the draft. Next, just because a photograph appears in an orphaned work doesn’t mean the photograph itself is orphaned. And lastly, a photographer must be able to stake their claim to their work independently of the author of the orphaned work it appears in.

At a time when professional photographers are under increasing pressure to handover all rights in their work, it is more important than ever to stand up for our copyright. The IPPA will be keep a keen eye on the progress of any suggested changes to Irish and EU copyright law.

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