The European Community is embarking on an approach to solving the Orphan Works problem that seems more practical than the bill in the U.S. Senate. (The current version of the House bill's Notice of Use requirements and the archive of those notices are steps in the right direction.)
At the recent 2008 CEPIC Congress in Malta, the MILE Project (Metadata Image Library Exploitation) was launched. The focus of the European effort is to build a database of works claimed to be orphaned.
Here's how it works: In order to qualify for an "orphan works exception," the publisher must do two things. First, he must demonstrate due diligence in attempting to locate the copyright holder. Then, before publishing the image, he must upload into an "orphan works database" a digital copy and textual description of the work along with metadata identifying the publisher and the intended use.
Obviously, the photographic community cannot force publishers to comply with these rules, but if legislation is passed that defines this as the criteria for a work being considered orphaned, then it will be in publishers interests to follow these procedures.
If, at a later time, the image creator or copyright holder lays claim to the image, the publisher would be required to pay "reasonable compensation in a reasonably timely manner" for the use. Reasonable compensation should be defined as the fee a stock agency charged for a similar usage. A timely manner should be defined as within 60 days after proof of ownership is verified.
If the publisher fails to settle the copyright holder's claim in the above manner, then the copyright holder would be entitled to bring legal action under the existing copyright law.
Stock-image libraries that cannot identify the owners of certain images in their files may also use the orphan works database to attempt to locate those copyright holders.
Image creators have at least two options to determine if their images have been declared orphaned and used with authorization:
1. They can check the orphan works database on a regular basis to see if one of their images is listed.
2. Libraries could regularly engage companies like PicScout , IDEE, Inc or VIMA Technologies to determine if any of the images in the MILE database match images in their personal databases. If matches are discovered, the libraries or copyright owners may pursue the appropriate fee.
Given that nearly all images used today are in some type of digital database, it should be easy and inexpensive to compare one of those databases with the MILE database to determine any matches.
This process is simple in execution and much less burdensome on image creators than other proposals. The system places a slightly greater burden on publishers than the proposed U.S. system, but the task of registering a work as orphaned should not take more than a few minutes. Also, it lets publishers use works without great financial risk when they are unable to identify the copyright owner. If the publisher fails to take advantage of the protections MILE affords, then it is in clear violation of the existing copyright laws and subject to the penalties they prescribe.
The requirement for publisher to demonstrate an attempt to locate the copyright holder makes it unlikely people will misuse the system by claiming that every work is an orphan. Since a copy of the image is placed in the "orphan works" database, it makes it likelier that the image will be found, if the identity of the creator is available.
As currently structured, MILE encourages libraries to place all images without a clearly identified copyright holder into the database. A more practical solution would be to limit the database to images customers have already used. There are thousands of images in the various agency databases around the world where the owner is unidentified, but no one will ever want them. There is no good reason to clutter MILE with these images. MILE's advantage is that all images declared orphaned are in one accessible place.
Another advantage to this system is that it would stop collecting societies from taking money from publishers and never paying anything to copyright holders. With this system, publishers would be free to use truly orphaned works at no cost, if no one ever claimed the rights to the work. When a claim is made, the actual owner would be the beneficiary.
My main complaint with the MILE concept is the name. It's difficult to understand what it's all about. I would prefer something like www.findingorphanworks.com.