Many current media business models are predicated upon systematic copyright infringement, as they can get away with using large numbers of third party images that go undiscovered by their creators and rights holders. Then, even when such usage is discovered they only have to pay what they would have had to pay for that usage in the first place. Systematic infringement therefore saves them money and the result is a positive incentive for media companies to use whatever third party images they want to.
The Cultural Heritage sector claims that current copyright law prevents them from digitising orphaned works in their collections and making the digital facsimiles available to the public. A simple change to Section 42 of the Copyright, Designs and Patents Act 1988 would enable this, but actually they want more, and lobby for the right to make commercial use of orphaned works in their custody. They claim such revenue is required to enable the “mass digitisation” projects they wish to pursue, primarily by allowing them legally to enter into Public-Private Partnerships with private companies that will make commercial use of the digital facsimiles they create.
Many media organisations and especially the BBC would benefit financially if they were able to make commercial use of orphan photographs, which is why efforts to introduce orphan works legislation generally have their active support. However, the commercialisation of orphan works is in breach of international law, violating the Berne 3-step test and the UK's obligations under WTO TRIPS Article 13. This is the reason such proposed legislation is usually accompanied by Extended Collective Licensing proposals; it is an attempt to work around the Berne and TRIPS obstacles. Such workarounds fail with regard to photographs.
Any proposal to enable the commercial use of so-called orphan photographs inevitably encounters the following problems:
• The Privacy & Exclusivity Problems
Can a photograph legally be published or used commercially? In many cases it cannot:
• The “Market Rate” Myth
What is an appropriate license fee for commercial use? For an orphan work there is no way to tell. There is certainly no such thing as a “market rate” for an orphan work:
What if the proposed use misrepresents people depicted in the image and breaches their rights, including their contractual rights to exclusive use if the image was commercially produced?
A map of the Internet, from Wikipedia
• Who will be the big winners from the commercialisation of orphaned photographs?
The Orphan Works Problem