PLEASE LINK TO, COPY, ADAPT, DISTRIBUTE THIS DOCUMENT FREELY AS YOU SEE FIT. WHAT IS IMPORTANT IS THAT YOU WRITE TO YOUR MP ABOUT THE DIGITAL ECONOMY BILL TO EXPRESS CONCERNS YOU MAY HAVE. PLEASE DON'T LEAVE IT TO 'SOMEONE ELSE' OR TRUST IT WILL ALL WORK OUT FINE. EVERY INDICATION IS THAT NO REVISION WILL BE MADE AND THE BILL WILL PASS. THERE IS A POSSIBILITY THAT PHOTOGRAPHS WILL BE REMOVED FROM THE SCOPE OF LICENSING. THIS IS NOT GOOD ENOUGH, ANY SECRETARY OF STATE WILL BE ABLE TO REVERSE THE EXCEPTION AT ANY TIME WITHOUT PARLIAMENTARY DEBATE.
The Digital Economy Bill
I understand you will shortly be voting on the Digital Economy Bill.
As a photographer I have serious concerns regarding some of the changes to copyright that this Bill will enable. They are the most radical changes to creators' copyright in 150 years. They have serious consequences for every amateur and professional photographer in the land.
Under existing UK law and consistent with UK's obligations under the Berne treaty, the WTO TRIPS treaty and EC law, the creator of a photograph is ordinarily the copyright holder. This right is automatic and without formality.
Copyright enables the owner to decide whether and how the work shall be used, to negotiate licence fees for use, and to exercise moral rights such as the right to be identified as the author, to object to distortion, distasteful or inappropriate use of their work.
Copyright is therefore the fundamental intellectual property right that enables photographers and most other creators to earn a living from our work. Contractual agreements between clients and photographers specify what may be published, in what context, whether exclusively, in what territories and for how long.
The Digital Economy Bill allows this copyright to be set aside by those who wish to make use of works, in the circumstance that they are unable to trace the owner and negotiate usage.
Such copyright works are called 'orphan works' because they have become separated from their creator.
There is a genuine “orphan works issue”, which is ostensibly the reason for the Digital Economy Bill's attempts to regulate the matter. Museums, galleries, universities and archives have extensive collections of historic works among which there are many orphans. At present they are unable to make use of such orphans because they risk being sued for infringing the revenant author's copyright. Clearly this inhibition serves neither the public interest nor culture itself. Few would argue with the principle that such works should be usable, if adequate care is taken to respect the author's interests.
Were this the whole story, there are several routes by which the matter could be resolved without difficulty. For example, "Fair Dealing" exceptions to copyright at present permit a range of activities. It is permitted to copy for the purpose of private study, or for criticism and review, or a range of other limited purposes, without committing any infringement provided sufficient attribution is given. It is not beyond the wit of lawyers to devise a Fair Dealing exception that would allow the cultural pro bono use of orphan works, provided an adequate search has failed to locate the rights holder.
This is not the approach that the Digital Economy Bill has taken. Instead it creates a mechanism whereby, should any intending user fail to locate the copyright holder via an “adequate search” (as yet undefined), they may license use from a collecting society established to grant such permissions. Should the author later learn of the use, they will be able to claim a proportion of the fee from the collecting society.
The crucial difference is that the Bill will allow any user to circumvent copyright. Government has made clear that it will not limit orphan licensing to those cultural organisations who lobbied for the right, but will also allow commercial publishers and industrial users of photography to utilise copyright works for any purpose, provided they cannot trace the owner.
This is a wholly different proposition from that required to satisfy the public right to culture. Orphan rights usage has mutated into a way to obtain work for profitable exploitation without regard to the equity of its lawful owner.
To fully understand the great danger this poses, it is necessary to know a few things about photographs in the digital age.
1. There are no technical means to ineradicably bind a rights holder’s contact details to a digital photo file. Although photographers can and do embed their information as metadata within image files, it is easily erased or overwritten by accident or design. Many software products remove these details, and many client users of photographs store photographs within systems that lose them. Simple operations such as saving a file from a browser or uploading to a webserver may orphan the work.
2. Although virtually all photographers wish for their name to be published along with their work as their "brand", this seldom happens. The 1988 Copyright, Designs and Patents Act created a legal right to be identified, provided the author asserted the right. However, thanks to lobbying by publishers who considered this onerous, this right was not extended to most published work, particularly in magazines and newspapers. In addition, this moral right lacked all practical means of enforcement since it was impossible to assess the damages caused by omission. This lack of attribution, combined with the fragility of copyright information within files, is exactly why orphans today far outnumber traceable photographs.
3. Some assessments conclude that 90% of all photographs on the internet are orphans. Most are created by amateurs for whom there has been no necessity to protect their work from commercial use that was prohibited by copyright law, but which the Digital Economy Bill will now facilitate. Of those created by professionals, most have been orphaned by careless handling by commercial publishers, the very group who will now be at liberty to use those orphans for profit via the DEB licensing scheme.
This is very much like a law that would permit the Taking Without Owner’s Consent of a motorcar, provided the numberplate has somehow gone missing. Payment of a fee to a government agency would allow this orphan vehicle to be used with impunity, and if the legitimate owner subsequently noticed, the extent of justice would be some proportion of that fee.
Were we dealing with motorcars instead of photographs, this suggestion would be laughable. Nobody would stand for it. It is an outrageous way for government to dispose of other peoples' property. It is also arguably illegal according to UK commitments to international IP and human rights law.
For this reason, photographers have lobbied long and hard for the right to mandatory attribution as an absolutely necessary precondition to any orphan usage scheme. That is, we insist that numberplates must not be removed from our vehicles. Submissions from all our major representative organisations have pointed out the absurdity and injustice of allowing orphan use without a balancing duty of care to prevent their creation in the first place.
These points were made first to the Gowers review of intellectual property in 2006, later to David Lammy and the Intellectual Property Office. In all consultations the logic was ignored and omitted from the resulting reports. The publishing lobby still unjustifiably regards such attribution as onerous.
There is consequently no requirement within the Digital Economy Bill that might restrain the generation of orphan works. There is only a mechanism to use them.
This imbalance is potentially an inducement to users of photographs to manufacture orphans, since it may be cheaper to license orphans via a collecting society, or it may allow use that the copyright owner would refuse.
In the same Bill wherein Government has taken firm steps to deter the illicit sharing of copyright files and piracy of copyright music and film, it has decided to set itself up as a middleman empowered to license for-profit infringing behaviour where our copyright images are concerned. This has no possible justification in the needs of galleries and conservators wishing to use orphans for the public good. It is simply iniquitous.
There is another vital issue, and that is the construction of the Bill itself, which seems purpose made to avoid debate and to circumvent proper democratic process. As written, it is impossible for any member of either House to have any clear idea what they are voting for.
Section 42, clauses 16a, 16b, 16c devolve all detail regarding these matters to regulations yet to be devised by the Secretary of State for Business, Lord Peter Mandelson. These regulations will be outwith the influence of Parliament.
At a time when public trust in politicians is at an all-time low, this looks like a devious and disreputable attempt to push through major legislation before an election, with unknown consequences for untold numbers of photographers, amateur and professional. It appears we are being kept expediently in the dark. As voters, belief in the integrity of politicians is thin enough already.
The Lords Select Committee on the Constitution wrote to Lord Mandelson in December:
"The Committee's view is that this is inappropriate, and that "orphan work" should be defined in the Bill. Likewise the following matters are left for you as Secretary of State and are not settled in the Bill: the treatment of royalties, the deduction of administrative costs, the period for which sums must be held for the copyright owner, and the subsequent treatment of those sums. The Committee notes that regulations made under this section are subject only to negative resolution procedure; and that the provisions contain no express duty on you as Secretary of State to consult appropriate stakeholders....it would greatly assist the Committee if you could explain why you consider it to be constitutionally appropriate for what appear to be such wide-ranging and open-ended rule-making powers to be conferred on you as Secretary of State."
To save you the trouble of researching Lord Mandelson's reply, I will summarise. He claimed that the need for flexibility makes things too fluid to set within the Bill. He cannot define what is an adequate search, because that may change over time. He cannot define what an orphan work may be because that too may change, since in part what constitutes an orphan depends on our ability to search for the owner. All this will allegedly be resolved by yet more IPO consultation. Mandelson agrees that there "may be a problem with photography". But we are certain our reasonable and logical need for mandatory attribution will not feature within regulations to be constructed by the Secretary of State. It is simply not within the scope of Section 42 116a, 116b, 116c. Such a requirement would have to be within the body of the Bill, and it is not.
Nor have Lord Mandelson's answers during Parliamentary Scrutiny by the Joint Committee on Human Rights been any clearer regarding EC Human Rights implications of disposing of some unknown person's copyright. His view is that "No Articles are engaged by the provision itself as the provision only contains a power and has no immediate substantive effect". This is world class evasion.
Lord Mandelson further replied that ECHR allows him to do anything he wishes with other peoples' copyright so long as it is in the public interest. Facilitating commercial use by businessmen seems to be a truly fantastical stretch of public interest.
I urge you not to support this Bill
· unless and until the Secretary of State provides meaningful detail that can be debated in a proper and timely manner, and
· unless and until Government amends this Bill to prohibit the orphaning of our work in the first place.
Please advise me of your thoughts and intentions on this matter.
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