- Most copyrighted works are never registered.
- Many if not most images posted online have had their copyright information stripped.
- Many, if not most copyrighted works now posted on the Internet, due to the way social media works, are posted multiple times, and displayed with little or no recognizable relationship to the original post location, making it almost impossible to tell who owns the image's copyright, or if it's an orphan.
- Copyright registrations prior to 1978 are only in printed form or on microfiche, and therefore all searches of copyright registrations prior to 1978 must be accomplished by-hand.
- The software for searching for photographs in the copyright registry is horrendous, to say the least, as you can't search "by image" but only by title, name, keyword, registration number, or document number. Therefore if you don't have any information, you can't find the image in the registry.
- For works which are in use online the act of posting the photos often immediately begins the orphanizing of them by stripping out the information essential to publishers who wish to use the work legitimately, including the copyright notice, and contact information of the copyright owner.
- While even the free online image search software is far superior in finding information about a particular image, compared to the US Copyright Office, I can't say that on a scale of from 1-10 the best online search tools available today are any better than a 4.
- Many content publishers as evidenced by Google's predatory approach to orphaned copyrighted materials are not particularly interested in finding a solution to the orphan works problem which actually considers the copyright owner's rights in a fair and equitable manner.
- While the problem of orphan images is serious today, it will be completely out of hand on or about 2105, (I won't live to see that day. LOL) if nothing is done about the problem. That's when the copyright runs out on most photographs published on the Internet today, but knowing if the copyright is valid or not for those billions of images will be close to impossible because most will have been orphaned.
So what can be done?
I have a potential three pronged approach. Part of the problem of orphaned copyrighted materials is will the onus permitting the determination of copyright ownership be on the author/artist, the publisher, or some combination of both.
Google essentially proposed that the entire burden be placed on the author/artist. While I think that authors and artists can't be exempted from being burdened to find a solution, they shouldn't have to bear the burden alone. Since the publishers want to use the materials, they should be partners in the solution.
The government's Copyright Office must be a partner too. Authors and artists who have registered their copyrights have already expended time and cash to do so. Therefore the Copyright Office should provide publishers with a searchable database of the registered work which actually allows someone to find a work in question, without already knowing the parameters of the registration.
While cloud storage today has a real cost, it's becoming less and less expensive. Authors and artists works which have been registered with the Copyright Office should be able to have their work available for a worthwhile search without any extra expenditure or effort on their part. So, first, an online database of copyrighted work which would contain all copyrighted registered works (speaking of images only but this could be expanded to all works), provided by the US Copyright Office, and searchable by the image itself would be created.
Many of the works at the copyright office are no longer copyrighted. To save on cost, those works would be omitted from the initial database. The copyrighted images from 1978 on, are already online, but the problem is the current available search routines are virtually useless for images. Therefore in my opinion, the costs of this part of the project are not at all insurmountable.
The second part of my plan is somewhat problematical from a cost standpoint. There must be a way for authors and artists who haven't or don't want their work product registered, due to costs or some other reason, to have their rights preserved. There should be a database in which they or their rights' successors can post copies of their works with copyright information. I would propose that the major publishers, including Google, etc. cover the cost of the database, and that it's voluntarily used by authors and artists, and their rights' successors, who want to preserve their rights. (This would not expand their rights to statutory rights, as this would not be considered the same as registration.) This database could be financed by reasonable fees for its use by publishers.
Third, a registry of online galleries should be created, and this could be accomplished inexpensively. These galleries would be single artist work galleries.
Then, if we wanted to put in a requirement for a diligent search, we could have a search which might actually work. The search would have to be of the Copyright Office's registered works, the unregistered works database, and the galleries in the gallery registry.
A system like this would put equal onus on both authors/artists, and the publishing industry. I came up with this from the top of my head. I'd bet that if authors/artists and publishers, along with technologists, would get together in a cooperative frame of mind, instead of being as adversarial as they have been, and that a truly representative group of authors/artists would be part of this get-together, not a handpicked group chosen by publishers, since all know about the serious problem of orphan works, an excellent solution could be devised.
Thus far, it's been a mostly publishers' show with most groups of authors/artists left out of the discussion.
Of course, another solution, one that I doubt will happen, is to rework the copyright registration system so that it's far less expensive for authors/artists to register their work, and that the registration procedures are streamlined compared to today, to facilitate registration, and that registration becomes worldwide with just one registration for everyone agreeing to the Berne Convention. Use of written and image materials are already worldwide via the Internet these days. Why not have a worldwide available copyright registration system? Such a system could even quite easily take into account the differences from country to country of registration, with the software programmed for it.
What do you think? I think it's a darn good starting point, anyway.
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