Orphaned Works and the Requirement To Preserve Metadata

An anonymous reader writes "Orphaned works legislation promises to open older forgotten works to new uses and audiences. Groups like ASMP think it's inevitable. But it comes with the risk of defanging protection for current work when the creator cannot be located. Photographer Mark Meyer wonders if orphaned works legislation also needs language to compel organizations like Facebook to stop their practice of stripping metadata from user content in order to keep new work from becoming orphans to begin with. Should we have laws to make stripping metadata illegal?" The author notes that excessive copyright terms may be to blame; if that's the case why lobby for Orphaned Works legislation? On a related note, Rick Falkvinge asks if we should revisit the purpose of the copyright monopoly.

Comments

When is a work "orphaned"?

[wvmarle]

This alone is an interesting question. How much work does one have to put in locating a work's copyright holder? How much effort do we have to put into remembering that information?

The summary already presents an interesting case: Facebook stripping metadata, such as the author name, from copies of works they receive. A short while later no-one can remember who it was from; so it is orphaned now? This would open an avenue of legal infringement. Especially with smaller works like photos it may be hard to find the original maker if the metadata is gone. Or should we consider such orphans as "copyright protected" and prohibit any further distribution unless the distributor can show they have the rights?

It's not exactly easy. Especially in this digital age where information can be wiped or added without a trace. Metadata can be stripped, it can also be added or changed, and then it becomes hard to prove which version is the original.

Re:When is a work "orphaned"?

[HungryHobo]

bring back legal deposit libraries and registration.

if your work is important to you then register it.

make it so that there's no exception for works which have been registered.

If you find a work who's source you can't find then you have to do a search for registered works if you want to use it.
We have the technology.

even for images. A searchable database is totally possible and reasonable. A heavily edited or recompressed photo might not match but how often do companies want to use ultra low quality images?

Re:When is a work "orphaned"?

[HungryHobo]

Sometimes it's more important what it's a photo of. Not everthing can be replicated.

If you don't know what photographer took an old photo of one of your dead parents should you have to make yourself a criminal in order to make copies before it can degrade?

under the current system you do.
You may not get caught but that's beside the issue. as it stands you could be sued if the photographers grandchildren ever found out that you had made copies for your family members.

but lets take your approach: if it's that important we can always just dig up the corpse and pay a photographer to make a similar one, or make it ourselves. Easy.

oh. wait. in the real world your "sollution" is os obviously stupid that I can't believe you didn't realise that it's impractical. you know it's stupid but you parrot it anyway.

Indeed any photo of anything which can't be reproduced hits the same problem. a dead person. a long gone building. a historic event.

If you can't find the guys who snapped the photo or figure out who his estate reverted to then you cannot legally make a copy. You can only leave the origional to rot and degrade taking the fine details of whatever it records with it.

you could ignore the law and make yourself a criminal which is what people already do but any law which makes everyone a criminal is a broken law.

that's why. it's a broken system.
   

Re:When is a work "orphaned"?

[Tapewolf]

So you think because the image might have some fraction of relevance to you that you have the right to use it even if you don't know who the person who took the picture is? Entitled much?

The system in this regard isn't broken. You just think you have more claim to something than you really do just because someone in the picture is a family member.

Yet you are arguing that the photographer's descendants should be entitled to a continual cut for something their grandfather did, and that the photograph must not be preserved if there are no descendants.

I might just about buy the descendants-get-a-cut part if it was something like a major film that benefited many, but in the example you're arguing with, the photo is only important to that one family and it's essentially being held hostage by the photographer's descendants. The essential point of being able to record media is to allow a creator's works to survive after they are gone, after all...

Re:When is a work "orphaned"?

[fyngyrz]

any law which makes everyone a criminal is a broken law.

Only in a democracy. And I'd remind you, the US is not a democracy. It was supposed to be a constitutional republic, but turned into a corporate oligarchy instead. The one thing it is not is a democracy.

The mistake you make is in thinking these laws were (or should have been) passed for your benefit. They were not. They were passed to benefit the largest copyright holders, those that can afford to litigate. They do that very well.

The only way to get this to change is to change the system. Attacking the laws themselves involves a complete mis-focus, and will be roundly ignored by any representative in the system until or unless you can put more money and/or power in their hands than the large copyright holders can. Can you do that?

Re:Copyrights, at just the right amount

[wvmarle]

And the solution would be so simple. Well, technically simple, not politically of course.

Copyrights: limit the time of protection to something reasonable, anywhere from 10 to 30 years would be reasonable to me. Not the 100+ years like now. And limit by counting from time of creation, not lifetime of creator plus some time as it is now. For the rest there is not much wrong with copyrights per se.

Those RIAA law suits against file sharers are not to be solved by changing copyright, that needs a different approach. Normalising the statutory damages on copyright infringement to something more reasonable (something like $100-$1000 per count would be reasonable considering a $0.99 retail price) would be a good start.

Patents: ban patents on algorithms: software and business model patents are bad, and should never have been allowed to be patented. That's all, for the rest patents are still serving their purpose quite well.

Re:Copyrights, at just the right amount

[blahplusplus]

"Copyrights is actually a good thing. But like many other thing, too much a good thing can become bad, very very bad."

You're ignorant of the law. People said the same when copyright was first implemented long time ago, the "just the right amount people" have no credibility. See here:

http://en.wikipedia.org/wiki/Copyright_Term_Extension_Act

Copyright has been extended EVERY single time, there was not a time where copyright was NOT extended at request of corporations/greedy rich stars.

For those interested in the law and history of law relating to copyright see here:

http://homepages.law.asu.edu/~dkarjala/opposingcopyrightextension/default.htm

And this speech for good measure for all the "copyright moderates". The same thing was said long before you all were born.

http://homepages.law.asu.edu/~dkarjala/opposingcopyrightextension/commentary/MacaulaySpeeches.html

My personal view is there is not going to be a legal solution forthcoming because most human beings are not concerned/too ignorant/stupid/illiterate.

Picard facepalms 1.0^10E6

[girlintraining]

Should we have laws to make stripping metadata illegal?

The solution to bad laws is not more bad laws. The reason we got into this mess is because of copyright, and the idea that websites like Facebook have any right whatsoever to your creative rights beyond non-exclusive publication. If you want to set things right, start by making the authorship rights of the individual who made the creative work something that cannot, by any contract or legal instrument, be abridged in any way. Oh, I know, businesses everywhere will be screaming bloody murder: What about our marketing? Our advertising! Oh however will we pay the bills without access to all your personal data! It's easy: Clicking like isn't a creative act. Telling people your likes and dislikes isn't a creative act. Creating metadata based on creative works (like keywords being used in status updates or comments) isn't a problem either -- in fact, the company can happily claim copyright to the resulting database and use it however it wants. And that's what most of the marketing and crap is based on. That's where the money comes from.

And one more thing: Those rights aren't transferrable or abridgable in any way, nor are they exclusive... but they do expire at the time of your death. No hand me downs for the relatives. No "150 years plus the life of the author" crap. No: Once you're dead, everything you ever said is fair game for the general public. You're the only one that should be allowed to benefit from your own work, and once you're dead, there's no more benefit to be had... so the rest of the world can reproduce your work freely... They just have to give you credit, like always.

Don't get into this argument about who owns what and derivative works and derivative derivative works and works for hire, and blah blah blah. It's a trap. An Ackbar trap, even. The moment you start to play that game, you lose, because there'll always be another argument, another subtle change, another justification. No. If you want to get a handle on intellectual property, you draw a firm line in the sand and say "This far, no farther." You do not ask for new laws to patch up old ones -- you get rid of the bad laws, strip it down to the bare metal, and then build it up right.

Re:Falkvinge is an idiot

[Stirling Newberry]

Just because we pay for the common defense, does not mean that the military was created to enrich defense contractors.

Re:Copyright Terms.

[Black Parrot]

Once the term expires NO-ONE can use the material to make a profit.

Wouldn't be any Hobbit movie.

Re:good luck with enforcing that

[Slalomsk8er]

I really hope that crap like itunes messing with music files get apple a fine for destroying the meta data.

Re:Copyrights, at just the right amount

[bfandreas]

Since copyright is only a temporary protection before a work goes into the public domain we need to take steps for preservation.

A copyright holder should have the duty to take sufficient measures that the work is still existant when it is ready to enter the public domain. And that means backups.
We have lost quite a lot of movies and semi-lost a lost of books, TV shows, radio recordings and whatnot to fire, negligence and not interest to publish it.

Just a couple of weeks ago I wanted to get recordings of a radio show I was quite fond of as a kid. It had 44 episodes. The publisher who currently hold the publishing rights sell it on CD or digital download for 10€ a pop. And they only sell the first 4 episodes. So not only was I facing extortionate pricing but also unavailability. As per my scheme this should void their copyright.
I say if the copyright holder doesn't want to sell his stuff or make it otherwise available he should be denied copyright protection. which would also finish off the Disney vault.

This kind of protection needs some strings attached. Basically every cultural achievement of the last hundred years is for sale and owned by whoever. We don't own our own culture anymore.

Re:Copyrights, at just the right amount

[Stirling Newberry]

You are confusing damages with punishment. And your assertion that because we have a prison industrial complex now, that we should extend it, does not stand up to scrutiny. Fundamentally your position that society exists to enrich the rich and impoverish the poor, at threat of gun point, shows that the use to which the law is being put is no longer beneficial to society as a whole.

IP is a concept, like prohibition, which has run its course as public policy. Both accomplished the same result: to turn ordinary people into criminals, and to make criminals into enterprises.

I think it's already illegal in Europe.

[SuricouRaven]

Not intentionally so, but rather a consequence of an entirely different copyright law. European union copyright directive:

1. Member States shall provide for adequate legal protection against any person knowingly performing without authority any of the following acts:
(a) the removal or alteration of any electronic rights-management information;
(b) the distribution, importation for distribution, broadcasting, communication or making available to the public of works or other subject-matter protected under this Directive or under Chapter III of Directive 96/9/EC from which electronic rights-management information has been removed or altered without authority, if such person knows, or has reasonable grounds to know, that by so doing he is inducing, enabling, facilitating or concealing an infringement of any copyright or any rights related to copyright as provided by law, or of the sui generis right provided for in Chapter III of Directive 96/9/EC.

2. For the purposes of this Directive, the expression "rights-management information" means any information provided by rightholders which identifies the work or other subject-matter referred to in this Directive or covered by the sui generis right provided for in Chapter III of Directive 96/9/EC, the author or any other rightholder, or information about the terms and conditions of use of the work or other subject-matter, and any numbers or codes that represent such information. The first subparagraph shall apply when any of these items of information is associated with a copy of, or appears in connection with the communication to the public of, a work or other subjectmatter referred to in this Directive or covered by the sui generis right provided for in Chapter III of Directive 96/9/EC.

Exact details will vary by country. The EU directives say what a country must achieve, it's up to them how they will do it.

Re:far bigger problems than excessive copyright...

[Anonymous Coward]

re: Truly, the USA has far bigger problems than excessive copyright protection:
.
Yes: unreviewed and unreviewable drone killings of foreign declared terrorists and of US citizens declared terrorists; border patrol run awry throughout the country and deep into the states and highways well past the actual borders; retroactive okaying of warrantless wiretapping of USA citizens; abuse of civil forfeiture law to increase LEO coffers; declaration of "1st amendment zones" (how brave-new-world double-talky is that phrase?) around political activity areas to suppress free speech; TSA at the airports abusing their authority; ICE at the subways/trains/buses and now roving through highways well past their initial bailiwick of the border for immigration and customs enforcement; generals living like corporate royalty and having their suits laid out for them by valets and them being unable to deal with civilian positions like being Director of the CIA.
.
There are many many other problems that are more important than copyright, and sadly the citizenry takes those problems just as seriously as they do the abuse of copyright and patent laws: they don't really notice it at all.

You make it sound complicated...

[MikeRT]

Are you going to ban hex edditors or text edditors?

No.

What about file systems that don't support metadata like fat?

How is that relevant to file formats which have their own metadata built into them?

Or what about when people don't like your naming/notation conventions will that be banned to?

No. It's about conveying basic ownership information, but you already knew that...

How will they deal with faulty programs like that will they be liable for removal of metadata?

iTunes removes metadata on your personal files. Facebook is a completely different case. Anyone who puts two brain cells into it can see a fundamental difference in liability between software meant to organize a personal collection and software meant to facilitate public consumption of media. It would not be hard to pass a law requiring the preservation of copyright ownership metadata in file formats which support that metadata in software intended to be used for the public dissemination of media.

Re:good luck with enforcing that

[Half-pint HAL]

The law doesn't have to say "it's illegal to change metadata", just that it's illegal to remove copyright attributions that would result in an erroneous orphan work. Stripping metadata is like removing the name-tag from someone's jacket or computer so that it becomes lost property. You hand it in, and when the owner doesn't claim it within 3 months, it becomes your property. But if you hadn't removed the tag, it would have been easy to reunite it with its owner. Removing identifying marks is dishonest, and potentially fraudulent.

The BBC is one of the groups supporting "orphan works" legislation in the UK, but the BBC routinely strips meta-data from readers' contributions to the site. Contributors could claim that the BBC misled them, claiming they would retain ownership of their works, but then failed to take insufficient measures to protect the rights that they had promised their readers. That sounds like a lawsuit in the making....

Not just Europe, most of the world

[langelgjm]

The EU Directive is a result of the WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty. Both those treaties require members to protect rights management information from alteration or removal and provide penalties. The U.S. has a similar implementation as the EU directive.

I'm not sure how Facebook's stripping metadata wouldn't violate the plain language of this law, but I'm sure they have some fine print somewhere that makes it legal.

Note that most metadata probably doesn't qualify, but I think on high-end cameras you can set up copyright information to be embedded in the metadata...

institutionalized fraud

[kenorland]

There used to be a very simple mechanism for protecting works to become orphaned: authors registered them with the Library of Congress. This also ensured that the work eventually could enter the public domain.

It was greedy European publishers that killed this, and then forced the US to comply. And now they are using orphan works legislation to enrich themselves; if you look at the European proposals for orphan works, they want to charge for the reproduction of such works and then redistribute the money to current publishers and authors. That is not how orphan works are supposed to work.

We should bring back mandatory copyright registration; it's the only sensible way of dealing with orphan works and the public domain.

Re:as a photographer

[Ankh]

Published works are automatically copyrighted in most countries, including the USA, because of ratification of international treaties such as the Berne Convention. The old US-specific requirement of marking something as copyright has long gone. (in other countries requirements varied, but e.g. in most Western countries items published anonymously, or published without explicit marking, get full copyright if the creator's identity becomes known. Just because a photograph is unmarked does not mean you can use it without permission!)

However, it's true that if you mark something as copyright you may do better in court, particularly in the USA, and that registering copyright, still available in many countries, can help.

Re:Licencing

[grahamm]

So you just introduce a law that anyone who publishes an image, video or audio file electronically is not allowed to remove any author attribution metadata from file as they received it. This is in effect enforcing article 6bis or the Berne Convention

Independent of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to the said work, which would be prejudicial to the author's honor or reputation.

Re:good luck with enforcing that

[Half-pint HAL]

But as to the article, most of what people post on Facebook isn't copyrighted from the start. When you first create a work of art (writing, images, etc.) you have what is called a Manuscript Copyright. If you distribute the work, that inherent copyright vanishes.

Howdy, pard! When did you step out of your time machine? Cos the Berne Convention made it pretty clear that copyright requires neither registration nor notices, and is rather an automatic right granted to the creator of the work. The USA was a bit late in actually ratifying the treaty, and many claim that the current legislation is still in breach of Berne thanks to the prejudicial treatment of registered works in terms of damages, but still: technically, even the USA doesn't require registration.