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Sunday, May 24, 2009

Sigh: The OWA again

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. 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 statutory damages if they could claim that they did a “diligent search” for the image’s owner, but were unsuccessful. (Well, they also have to meet several other technical criteria, but we'll leave those aside for the moment.)

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 1% of pro photographers or stock photo agencies bother to register their works with the US copyright office, 99% 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 99% of photographers don’t register their works. So, for them, the OWA is inconsequential.

Ok, so what about that 1% 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? What you don't do is read that line by itself. Rather, it’s tied to other parts of the bill. So, let's first talk about those and then return to "diligent search."

The bill 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 say that there will be many registries and databases, each containing some subset of copyrighted works. The implication is that if there are multiple registries, would a potential infringer only need to query ’some’ of these registries? Which ones?

In reality, the internet is searchable--it doesn't matter how many there are, they have to be open to query (so that people can search it), therefore, all such databases would be searched by the others, resulting in all the databases being literal copies of the others. (And let's face it, the search engines would index these registries too.)

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 do, it’ll propagate to all the registries. Remember, the "registries" are not places to register works--they're places to search for works that are already registered. Also 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?" What we can say for sure is that it has nothing to do with "searching a database."

This is actually a legal term, much like "best efforts" or "reasonable efforts." It's not something that's defined by specific, enumerated actions. Rather, it's evaluated by a judge. In the case of a dispute, a copyright holder claims that the defendant infringed the copyright by using the image without permission. The defense has the onus of showing that it did a "diligent search." Here, the judge is going to listen to the explanation of whether the defendant's actions seemed "diligent." If they say, "well, we went into the database and found nothing," that may not necessarily be satisfactory. The image might have been taken 20 years ago, and would therefore not be expected to be in the registry -- because the registry only contains works since 2007, for example. If it's a photo from the 1980s, no judge is going to recognize this explanation as "diligent."

Yes, "diligence" is subjective, but that's how the law works. We live with that kind of subjectivity all the time in every matter of law and society.

Many photographers claim this is their liability--that it's too easy for an infringer to get away with stealing an image because of the unpredictability of the courts and their interpretation of "diligent search." Well, photographers have very little to lose by comparison to the infringers on the other side of the fence. While a photographer might lose his right to sue for statutory damages, the infringer risks far more. Namely, he has to pay legal fees whether he wins or loses. And if he loses, he also has to pay the statutory damages.

There are many reasons why infringers risk more than photographers from the OWA. Which is why the OWA is not only not a threat, but it's intentionally designed for specific and narrowly defined users and conditions: non-profit educational institutions that use works for the public good or to disseminate information.

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: the searchable database might allow users to find your works.