From the BAPLA statement: "Our work was based NOT on whether Clause 43 stayed or went – but on influencing the detail and the debate in this and all future legislation that will affect our industry, whether that is of benefit to a photographer or a global picture library."

 Then I can only presume that they didn't understand or chose not to understand the simple fact that clause 43 would have removed the basic right of creators to have exclusive control over their own work. Remove this right and the business of photography falls apart. They are either insincere or incompetent. 

I think that one has to decode the BAPLA statement some. Although short on direct answers there is bridge-building intent, something that will be necessary. Beyond recriminations, we need to figure out what went wrong.

I would like to remind BAPLA of some extracts from its submission to the Gowers review in 2006. I would like to invite BAPLA to renew its faith in its own words, which were very much in tune with what photographers and their representative organisations also said to Gowers. And for that matter, exactly what photographers who felt it necessary to defeat S43 also believe.

"The term ‘orphan works’ is misleading. It suggests that the creator of a given work is no longer in existence, whereas it is more frequently the case that the creator is simply hard to trace. One of the reasons creators are hard to trace is that the practice of media producers and publishers in crediting creators is often extremely poor. In a recent survey, for example, 68% of images in UK newspapers appeared without a credit, in breach of their creators’ moral rights and, in many cases, the contractual terms of the licence under which the images were supplied."

Yet BAPLA in 2010 came to regard as satisfactory progress that Government had defined an Orphan Work as a work whose author could not be contacted, and IPO equivocation on moral rights as the best that could be achieved.

"BAPLA has worked hard, with successive ‘Credit where Credit is Due’ campaigns, to promote good practice in relation to this issue, in support of creators moral rights but also in support of the very real commercial issue, that proper credits are essential to the building of creators valuable reputations, and to the tracing of permissions, when other end-users wish to re-use images in other projects and contexts. Our figures suggest that the success of our campaigns has been limited, due to the fact that we are up against the inertia of entrenched cultures within client organisations."

Again, precisely so. And Gowers and all those who framed S43 went on to affirm their membership of that entrenched culture by disregarding the point. The publishing lobby remains intransigent, deeming bylines onerous and costly, just as they have in consultations from 1987 on. Unless Government and the IPO radically change their stance toward individual creators as a sort of incidental impediment to "creative industry", we shall always lose. They just don't understand that without us, the creative industries have nothing to aggregate, package, publish and sell. We have asked nicely, repeatedly, it hasn't worked. They haven't understood it's non-negotiable because we have nothing to lose.

"BAPLA would greatly support and appreciate a strengthening of the moral rights provisions in the regulatory framework, particularly in respect of the commercial issues this would address. BAPLA would not support any specific ‘orphan works’ provisions which would loosen the requirements to seek proper permission from the legitimate rights-holder or limit the liability of end-users in respect of their responsibilities in respect of others’ rights. This is because such a move would undermine the basis for trading in our industry as well as fundamental principles of rights and ownership."

And again, quite right. But when push came to shove BAPLA did support ECL removal of "requirements to seek permission" within S43, in the hope that some damage limitation during subsequent consultation may be possible.

I think we all recognise that compromise is necessary, but some principles are non-negotiable because they are indeed as "fundamental" as BAPLA said. Once ceded we are doomed.

That was the real fracture line over S43 : that photographers themselves regarded the clause as written to be lethally unacceptable, whilst some representative organisations had less clarity or determination, or mixed agendas that led them to believe compromise was desirable or possible. We, as individual photographers, inevitably ended up not only fighting Government and the publishing lobby, but in conflict with our own organisations.

That has to change. Organisations are, no matter how democratic or responsive, necessarily distanced from our reality. Salaried representatives and administrators could not experience S43 as the direct threat to their livelihoods that we did, to ours. They deal with abstraction, we think first of how the market will seize and exploit, as it does already. Stockholm syndrome also plays a part in consultation, with the wish to preserve goodwill playing a part. All this contributed to where we have just been. BAPLA - and not only BAPLA - talked the talk in 2006, but walked offline in 2010.

Realistically though, S43 was a peasants revolt that could not have been effectively led nor implemented by representative organisations. It had to come spontaneously from photographers themselves, both for authenticity and the mechanics of its rapid propagation, and for its effective mass engagement with politicians. Ultimately it can translate to better representation and a stronger voice against Government and publishing, if our organisations understand why it was necessary, and if individual photographers remain actively engaged. That is the way forward now.

I see in the BAPLA statement opportunity for this. The suggestion of coalition around the British Photographic Council is intuitively natural and correct : it is what BPC can become, if done right. It is not without danger of reverting to the same established patterns, the same semi-detached representation that does not truly represent. But hopefully both sides have now learned this cannot work. One thing that BAPLA does have right is the necessity for research. The BPC survey, as well as buttressing our case to Government, is an opportunity to close the gaps between representative organisations and those they represent.

The next phase has to be dialogue between photographers and our organisations. They have resources and access to expertise that we do not, because that is what we fund them to sustain. We now have to ensure they understand where we can compromise and where we cannot, and why. I think and hope we are all wiser now : unity has to be founded on a solid base next time, it cannot be commanded by anyone.

©A admin

EPUK Q4: Is it true that BAPLA was considering setting itself up as an Extended Collective Licensing entity, had Clause 43 passed?

 BAPLA: "We totally... refute suggestions of BAPLA’s intentions to run an Extended Collective Licensing scheme."

 It's a start. One question down, seven to go. What a lot of text seemed necessary in BAPLA's statement just to answer one question and leave the rest unattended.