tony sleep photography

Lawrence Lessig, the influential advocate for Free Culture and Creative Commons licensing, has made some surprisingly pungent criticisms and counter-proposals regarding Orphan Rights legislation in the USA

Lessig, who is generally associated with being in favour of Orphan Rights as a liberalisation of copyright, argues that the proposed legislation 'puts an especially unfair burden on foreign and unpublished copyright holders. In my view, photographers and other existing copyright holders are right to be outraged at the proposal. Hiding under the cover of “reasonably diligent search,” much of their work will be — unfairly — threatened.'

He argues further that the concept of 'reasonably diligent search' is just a mush that will sew confusion and be a job creation scheme for lawyers.

Lessig also proposes a 'DNS-like' non-Governmental copyright registry scheme, permitting 'one-click' low-cost registration as a means to avoid work becoming orphaned in the first place. This is something I've been saying for 2+yrs to anyone who'd listen, most recently here.

All this is of intense relevance to UK photographers in view of the Gowers Report parallel proposals for orphan works legislation and a copyright registry system in this country. Although Lessig is talking about a US solution, he recognises that other countries will also need to implement similar schemes to address the issue effectively. The UK is at a pivotal point where it could make a terrible hash of Gower's proposals if it simply transplants the bureaucratic US Copyright Office registration scheme, which Lessig argues is now a poor fit to C21st realities.

Most professional photographers remain mistrustful of Creative Commons licensing and the Free Culture movement in general. On the one hand the radical elements of Free Culture seem to view copyright itself as theft, which condemns creators to noble starvation or dayjobs. Sion Touhig's Register piece articulated the flipside of free content: 'the only entities that are now able to make decent profits from photography are large corporations - because only those corporations have the infrastructure to aggregate images into massive hubs'. And NUJ member Chris Wheal famously accused freelance photographers of being 'mini capitalists and greed merchants' (but then he is a publisher). So confusion and dissent abounds, whilst out in the real world the majors and their lobbyists get on with the daily business of building unassailable monopoly.

Against that hothouse background Lessig's views come as a whiff of remarkably un-bonkers pragmatism.

Creative Commons always did have a lot of sense behind it. It clearly is necessary to adjust the outdated legal framework of IPR law to make an equitable balance of interests possible in the world as it now is, regardless of how idealists of any hue would like it to be. On the corporate side here seems to be an emergent awareness that DRM won't deliver much except embittered customers and brilliant hackery. That RIAA and MPAA demanding money with menaces could hassle their entire market to a state of terminal disgust. We have a long way to go here, but Lessig's stance on Orphan Rights might just be a seed of commonsense around which a much needed healthier balance of interests can coalesce.

Lessig's blog piece includes this excellent presentation which explains the context and background of Orphan Rights legislation and his counter proposals.