Tuesday, 23 February 2010

More on TwistCo

By a strange twist of coincidence I found myself discussing the orphan works legislation with officials at the UK Intellectual Property Office yesterday. The context was photography, which the IPO recognise has the worst orphan problem.

Firstly, orphan works legislation is required because the practice of trying hard but publishing anyway is actually illegal to the extent of being a criminal offence! The idea is to make it possible to publish an orphan work within the law.

Secondly, the plan, as outlined to us at the meeting, is to make it as hard if not harder to use an orphan work than to licence a known one or even commission something new. Anyone wanting to use an orphan would have to apply for permission to do so (to our hypothetical orphan collecting agency TwistCo ... see the previous post), prove they have diligently tried to find the rightful owner, and pay a fee appropriate to the intended usage.

Thirdly, this is an extension to the way rights are handled. No existing rights are to be compromised. On the other hand, the proposals would only apply to the UK: there is no international aspect to this.

Fourthly, there is no reason or even implied incentive to register your copyright works with TwistCo in order to prevent them being orphaned. That's not the way it works: TwistCo is reactive and reacts to publishers registering orphans they wish to use. TwistCo will probably be obliged to advertise the orphans they have on a regular basis, so that potential relatives have the opportunity to claim them. Falsely claiming ownership would be fraud but the legitimate parent would still need to prove their case; this is the case with a copyright claim under existing law anyway and we would hope that a claim by a copyright owner to TwistCo would be less arduous than a copyright infringement suit.

Personally I feel somewhat reassured by all this, with the caveat that these plans are not written into the bill, they would have to be facilitated by the Secretary of State if and when the bill is passed. The IPO are also aware that tracking photographs on the web will rely on effective image recognition that can cope with cropping, changes in gamma, rotation, inversion ... and so on. Incidentally, keeping the bill vague is apparently a way of giving it a chance of getting through. The discussion going on at the moment is nothing to what would be happening if the bill actually went into detail.

We should be aware that any kind of work can be an orphan. After the meeting I realised that this could just as easily apply to a computer program, or routine from one. With so much JavaScript floating around the web there are lots of opportunities for lines of code to get separated from their copyright notices. Just when you think you've found all the worms in the can you find another can on the shelf.

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