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France: An Orphan Work Bill For Still Images
Screenshot of the UPP website: "Oui à la proposition 441"
BySylvie FodorOn Wednesday 1 September 2010, within the framework of visa pour l’image in Perpignan, the French ministry of Culture organized a round table on the issue of orphan works for still images.
A bill has been presented on 12 May 2010 to the Senate in France: the so-called “proposition 441”. The French proposal follows after the USA (2006 and 2008), Denmark (2008), Hungary (2009) and the UK (2010). Unlike these bills or/and laws, it deals exclusively with still images. In France these are called“DR” (Droits réservés).
The bill proposes that, once they have carried a “diligent search” (recherche appropriée), image users, who cannot trace the author, pay a fee to a collecting society according to prices that are still to be negotiated.
The bill is ardently supported by the UPP and the collecting society for visual artists, the SAIF, of which UPP is a board member.
On the panel organized at visa pour l’image, the point of view of picture agencies was represented by the vice president of SAPHIR, Eric Larouil, managing director of the VU Agency. He reminded that picture agencies do not have issues with orphans, as their job is precisely to manage the rights of the images held in their files.
The panel showed that there is no unanimous agreement within the picture industry and the publishing industry. Negotiation is necessary and follow-up meetings are planned.
Personal Comment:
Having followed the orphan works issue since the first Orphan Work Bill in the USA in 2006, I would like to comment on the bill in this blog.
The “Proposition 441” tackles at last with a crucial issue for the fort being of our industry. Its premium quality is to make clear that all images have a price. However, as it stands now, it falls short of solving the issue of orphan works. Only collecting societies would benefit from the new rules. The rights holders will lose out, including those photographers who are now so ardently supporting the bill.
- Fees
The fees proposed by collecting societies for “DR” would need to be very high to prevent that the users do not use them as a convenience, a quick clearing center, instead of looking seriously for the rights holders. If the fees are too low, there will be as many “DR” as now, except that a payment would go to a collecting society instead of the rights holders.
- Search
Search is key! Orphans are created for lack of search too … This is particularly true for "DR" . The bill does define “orphan work” but not “search”. The formulation chosen in the bill is weaker than the original formulation in the Proposal of April 2008. Another issue is that the authority checking that a "diligent" search has taken place is the same as the one taking in the money (in practice a conflict of interest).
- Sources
Paying a fee to a collecting society should be the last resort! The bill fails to address the issue of "Sources". If not the name of the photographer, users should be obliged to name their sources: the name of the PR company providing the press pack with the pictures, the URL of the webiste, the name of the company who owns the CD etc.
- Competition
The bill expressly provides for competition: not one but several collecting societies are to be agreed by the French government to manage orphaned images. However, if the fees are the same, where is competition? If the aim is to avoid any conflict of interest, wouldn't it be more effective to set up an independant clearing center possibly managed by collecting societies but distinct from them ?
- Europe
The Commission (CSPLA) was summoned in order to tackle the issue of orphan works within the context of on-going European legislative efforts, the European Digital Library EUROPEANA and orphan works in books held by National Libraries. This aspect is absent in the "Proposition 441", which, arguably, deals exclusively with still images.
On the panel on 1 September at visa pour l'image, Frédéric Buxin, President of the UPP, insisted that the bill was simple as it only has three articles and that is good. But more negotiations, some amendments and a vote will be necessary to make it a law. In any case, France should be commanded for its attention to photography and its efforts in solving an issue that goes well beyond its borders and floods the Internet: the issue of uncredited, unpaid pictures who are called "orphaned" for lack of proper search.
File Attachment
| Attachment | Size |
|---|---|
| Proposition de loi relative aux oeuvres visuelles orphelines (in French) | 62.46 KB |
| Snapig_Letter to Publishers about_DR (in French).pdf | 238.14 KB |
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France: An Orphan Work Bill For Still Images
I agree with your comments in full especially where you outline the fact that rights holders will lose out, and if such a bill is passed fees proposed must be very high to dissuade image users from utilizing an orphans works bill as a resort rather than searching for rights holders. We are already trying to manage the enormous change occurring in the publishing sector with the rapidly growing popularity of online media, mixed with the naivety of image users thinking images online are free, adding orphan works to this list will only encourage image users not to source the rights holders but see the collection houses as a fall back. I do understand the cultural sector argument, such as museums, who have a number of aging archive materials for which they cannot trace the rights holder and therefore cannot license or use to their benefit. Perhaps orphan works should apply to preceding works only, not anything taken in the last 40-50 years that can be traceable for example?
However, the amount of bad practice that goes on whether from the novice to the supposedly experienced, taking images from places such as google, flickr or twitpics on the assumption they are free is appalling, and this move towards changing the law for orphan works will in my view add fuel to the fire that has begun in the online world. We as an image community need to start extensively educating all image users about copyright and what it means, and we should be lobbying large companies to present best practice rather than manipulating content that comes their way for their own means without any consideration for rights holders.