People unfamiliar with copyright laws routinely scan hard-copy photos and share them on the Internet. Some willful infringers knowingly remove image metadata. Stock agencies, to which copyright is the cornerstone of existence, often remove metadata from image-thumbnails displayed as part of search-result pages in order to improve the loading speed of the engine and make it more attractive to image buyers.

The resulting sea of "orphan works" is now widely recognized as a problem needing new legislation. The U.S. Copyright Office, the U.K. Gowers Review and the European Commission have conducted research and published their findings. However, a legal solution has yet to be formulated. The first U.S. orphan works bill was introduced in 2006 and subsequently died in Congress, due to opposition by the Stock Artists Alliance, the American Society of Media Photographers and other creative industry membership organizations and companies.

A new orphan works bill is being drafted for consideration in the 2008 U.S. legislative session. Representatives of ASMP, digital content-monitoring company PicScout and others who stand to be affected by the new legislation testified at the first orphan-works hearing held by the House Subcommittee on Courts, the Internet and Intellectual Property in March.

ASMP general counsel and managing director Victor Perlman presented the organization's position. ASMP, which believes the current political environment is substantially more favorable to creators than it is likely to be over the next few years, continues lobbying to protect them from "profiteers seeking to use our works for commercial purposes," which was the key threat of the last proposed orphan works legislation.

The need to use unidentifiable images remains the driving force behind the bill. The uncertainty of ownership often discourages creators and users from incorporating orphan works in new artistic efforts or making them available to the public. ASMP says passing of some form of legislation has become inevitable. The general public, museums, academic institutions and publishers are lobbying for it and have the support of key members of the House and Senate.

A solution that meets the needs of these groups would allow the use of orphan works to further education, historical preservation and other non-revenue producing personal or community purposes. ASMP feels that use of unidentified images should be permissible for publishers of nonfictional books, articles or documentary films and videos. Even revenue-generating activities of nonprofits, such as exhibits that produce income for museums, are not viewed as problematic. However, a new law must protect copyright owners from commercial users of images offering an orphan-works defense as justification of infringement.

Maya Gura, director of marketing and sales at PicScout, testified about using its image-recognition software to identify the original owner of files missing attribution. The company, which currently helps leading stock-licensing agencies monitor the use of their images, was the only technology provider asked by the subcommittee to present its product as a potential solution. Management thinks this may be a prelude to a potential government contract. Subcommittee chairman Howard Berman said: "I believe technology can provide a critical part of the solution in identifying the owners and original creators."