In Berne Convention, Copyright, Copyright Act, Orphan Works, TRIPS

When the Copyright Office spawned the Orphan Works bill (2006), they said it would not cause problems for artists. They were wrong. Now they concede the problems, but say registries are the solution. Wrong again.

PicScout is one of the technologies being developed for locating visual art. On March 13, they touted their capabilities to the House IP subcommittee:

“Our technology can match images, or partial information of an image – such as a single face of one person in a crowd, with 99% success… Over the years, we have established relationships with our partners and now track the use of millions of digital files stored in our huge centralized database.”

PicScout is just one of several firms that hope to benefit from the Orphan Works bill. They envision a future registry in which registered pictures will not be available for review or browsing. Instead a searcher would feed in a desired image and if there’s a match, get back only the artist’s name and contact information – or be told there is “no match.”

So far, so good – for all the pictures in the registry. But “no match” – there’s the rub.

You Can’t Find What’s Not in the Registry: Let’s say you haven’t registered a particular image in the system. In that case, the best technology in the world won’t find it there. So unless every picture you’ve ever done is registered, the searcher’s failure to find a match would actually orphan a non-orphaned image.

But let’s say you comply with this coercive bill. You register tens of thousands of your works with one or more commercial registries. Are these works now safe from infringement? No! They can still be orphaned. Here’s how:

PicScout’s claim of “99% success” concedes a margin of error of at least 1%. Sounds small, doesn’t it? But consider:

– Google has already said they intend to use millions of orphaned works. Other businesses will use millions more.

– One percent of every million searches means 10,000 registered images “accidentally” orphaned.

– Multiply 10,000 accidental orphans by millions of millions of searches and you have an astronomical number.

– These are images that will be orphaned even though the artists spent the time and money to register them.

– Will these artists be able to sue for infringement?

– Yes, but at their own risk, because

– The users’ use of registries will prove they did a “reasonably diligent search.”

And there’s another problem:

– It’s statistically impossible for each million searches to orphan the same 10,000 images.


– Every image you register will be permanently vulnerable to an infinite number of orphan opportunities; also:

– An image may turn up as a “match” on one registry – while being orphaned on another.

There are many reasons why international law forbids coerced registration as a condition of protecting your copyrights. We’ve just given you some.

We believe the technology being developed by PicScout and others is fantastic. But it should be used to help artists protect their rights; not to facilitate cultural theft on an unprecedented scale.

Please help us spread the word about this bad bill.

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