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Orphaned Pictures Law in Progress

Nov 02. 2010
12:11
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BySylvie FodorUnless the process stalls as it did in the United States and in the UK, it looks as if the French are on their way to get the first Orphan Works bill out next year.

The object of the proposed law in France is very limited: it is not a comprehensive Orphan Works Bill as in the US, the UK and Hungary but applies to images only. It targets editorial images, the "DR"/ Droits réservés , proposing a management by collecting societies. A critical review of the original version of the bill is posted here.

"Petite Loi"
The vote in the Senate, leaves little of the original text: one article only providing a definition of "orphan works". Articles 2. and 3. are not included in the "petite loi" anymore and left to the National Assembly to discuss. In their place, Art. 1 bis asks the government to set up a Commission to study the opportunity of collective management of orphaned woks.

Management by collecting societies of orphaned works is not excluded but postponed to an undefined date.

The Sénateurs pointed out that any law in France should take into account the up-coming EU Orphan Works Directive expected for the end of November 2010. It should be global in scope, include pictures and text, and not repeat the mistakes of Google Books which was eventually sued by Photographers Association ASMP for having been left out of the Settlement. The Report of the Senate mentions the efforts made at EU level to help users manage orphan works, such as the ARROW Project and its follow-up project, ARROW PLUS, of which CEPIC is a partner.

Striking Figures
Notwithstanding the debates, a few interesting figures on the state of the picture industry may be extracted from the Report of the Senate. These figures come from different statistical sources.

  • In France, the value of royalties paid for photographs has been divided by five between 2005 and 2010
  • Within the last 10 years 52% of "photographic businesses" - including photographers and photo studios - disappeared
  • Since 2001, there has been a 16% decrease of staff photographers and 30% of freelance photographers
  • Up to 90% of images published in the press do not mention the name of the author ("DR")
  • Only 3% to 20% of the "DR" are actually truely "orphaned", i.e their author cannot be traced at all

These figures alone explain why a law for pictures only is necessary. More than any other industry, the image industry suffers from internet piracy, low prices or the "gift economy". In fact, maybe orphan works laws have failed so far precisely for that reason: they want to solve a complex issue in too much a comprehensive way. The EU is struggling to accomodate the demands of users, who want to cut costs, and copyright holders sticking to their means of making a living.

The EU Directive, which will affect all orphan work legislation in Europe, is expected for November 23rd.

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