Pay orphans’ parents!

PROPOSED legislation in the US to allow the use of so-called "orphaned" works - words, pictures or music whose authors cannot be found - has caused severe alarm in some quarters. The NUJ has issued a statement in response, saying it "utterly rejects the idea for dealing with so-called "orphaned works" expressed in the "Shawn Bentley Orphan Works" Bill currently before the US Senate and the equivalent measure in the House of Representatives." General Secretary Jeremy Dear said: "I urge all Senators and House members to oppose these Bills, because passing them would undermine the creativity that is so important to the economy of the United States and of its allies."

The statement goes on to set out principles that must be upheld if there is any change in the law to allow for use of orphaned works.

Crucially, the NUJ believes that would-be users must apply in advance for a licence, paying a fee that reflects the commercial value of the use - so the money is guaranteed to be there if the author shows up. If they don't, the funds should be spent for the benefit of authors in general - as already happens with unallocated photocopying money in the Nordic countries.

The Bill before the US Congress proposes instead to limit users' liability. Authors who register their works with the US government can claim "statutory damages" rather than having to prove actual damage. If passed, the Bill would mean that a revenant author could claim only actual damages, registered or not, if the user proved they did a reasonable search.

Jeremy Dear concludes: "NUJ members' work is used all over the world, as is the work of US writers and photographers. They deserve - and they have in law - the right to fair pay for every use. We need international solutions, that respect international law."

The full statement appears below.


That statement in full

The National Union of Journalists utterly rejects the idea for dealing with so-called "orphaned works" expressed in the "Shawn Bentley Orphan Works" Bill currently before the US Senate and the equivalent measure in the House of Representatives.

NUJ General Secretary Jeremy Dear says: "I urge all Senators and House members to oppose these Bills, because passing them would undermine the creativity that is so important to the economy of the United States and of its allies."

The NUJ is determined that any arrangements for the use of articles, photos or illustrations - or indeed songs or dances - whose creators genuinely cannot be located must be based on these principles:

  • The would-be user must must apply for a licence to use the work in advance;
  • Licences must only be granted where the would-be user shows that they have searched diligently for the author (a term which includes photographers and illustrators) - not just according to the customs of one country, but internationally;
  • The would-be user must pay a fee that reflects the commercial value of the specific use - the "going rate" for a given work whether it be for use as the basis of a blockbuster film, in a newspaper or in a local library exhibition;
  • When the parent of the "orphaned work" shows up, that fee must be handed over and a new fee must be negotiated;
  • Fees that are not so distributed should be spent for the benefit of authors as a whole - on training, relief of hardship and cultural development;
  • No law permitting use of works whose author cannot be identified must be passed until all authors, everywhere, have effective legal rights to be identified and to defend the integrity of their works - until authors worldwide have "inalienable moral rights" in the language of international law.

The key proposal in the Shawn Bentley Bill fulfils none of these criteria. It merely limits the legal liability of the user. It creates the perception of a free-for-all. This will encourage scams and rip-offs of authors, who will be left with no recourse unless they can raise many tens of thousands of dollars to fund pursuing abuses of their works through the civil courts. The Bill itself acknowleges this weakness when it calls for a review of remedies available to authors claiming relatively small sums.

Workable models that fulfill the above principles exist and the NUJ is working with its sibling unions to develop and adapt these and to promote systems to make it easier for would-be users to identify authors.

Jeremy Dear concludes: "NUJ membersí work is used all over the world, as is the work of US writers and photographers. They deserve - and they have in law - the right to fair pay for every use. We need international solutions, that respect international law."

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