With the information coming out about the Hargreaves Review, I couldn’t help but notice that they are once again talking about implementing the Orphan Works clause previously thrown out of the Digital Economy Act.

I have to say here that you are likely to get more technical reasons as to why the Orphan Works clause from the British Journal of Photography. However, here is a quick summary, just to put the rest of my post into perspective.

An “Orphan Work” is any creative work for which the creator is unknown. The government has been considering allowing people to pay them (the government) a fee in order to use these orphan works, whereas currently you would still need to get the creators permission in order to use the work. Of course they’ve said that people need to prove they’ve made “reasonable attempts” to find the creator, but what constitutes a “reasonable” attempt, and how strict they’ll be when they stand to profit by not being strict..

I have to confess to being cynical.

The way I see it, if the person deciding whether or not to allow Person A to use Person B’s intellectual property has a financial stake in finding in Person A’s favour, that’s not exactly an unbiased and fair choice.

Now the main arguments I’m seeing in favour of the Orphan Works clause are these –

  • I want copyright laws relaxed so I can pirate music without consequence
  • The music industry is a faceless money hungry corporation who aren’t interested in the little people
  • There is a lot of work sat there unavailable due to not knowing the creator, and it would be good to make it available
  • Creative work shouldn’t be affected by something as mundane as money and therefore should be done for love alone and distributed freely

Obviously points 1 and 2 are ridiculous, but for the sake of debate I shall answer them.

For a start these first two kinds of comments assume that the copyright reform only affects the music industry. Who have admittedly not always acted in the best interests of either the fans or musicians. But it doesn’t take into account all the other creative industries, nor does it take into account the musicians themselves. And let’s face it, the first group might find their supply of free music dries up a little if the musicians cannot afford instruments, recording studios, or even the time to make music.

As for current copyright stifling the creative industry, let’s try thinking that through. As it currently stands, if someone puts the time, skill and effort (and in some cases money) into creating something then they earn money off it. Which usually means they create more.

As far as I can tell, the way the copyright reforms will increase the creative output will be – person A creates a piece of work, as above this will involve time, effort, skill and possibly money. Once they’ve created the work person B sees it. Person B cannot (or will not) find out about person A, pays their fee and creates and profits from their use of the original work. Person A uses this profit to create more.. oh no.. wait. Well maybe person B will create an original piece, and then person C can profit from it, prompting person B to create more.. ok ok scrap that.

The on to my favourite argument. The worthlessness of design.

It seems some people think that those who work in creative industries do not have a right to profit from their work. They also seem to believe that creative work should never have a monetary value. Even if we agree with this, do we believe that people’s time has no monetary value? In which case, do these people work for free? How about skill? Should cost of materials be reimbursed? Because that is what you pay for when you pay for a piece of design. Whether it is a piece of music, a photograph, a book, a website, even the screen you are looking at right now has been designed. Would you expect that for free?

Personally I am appalled by the orphan works clause. And I have no desire to live in a world where creativity is not rewarded, or seen as having worth.