The next few days will decide the future of UK photography for a generation. On Tuesday 6th April the forthcoming election date will be announced and the Digital Economy Bill will be debated in the House of Commons. Inevitably most of the heat will surround Clause 18 and its controversially tough measures against file-sharing and piracy. Almost unreported outside the photographic press and photography websites, Clause 43 achieves the opposite, substantially weakening copyright for photographers. Other media are unlikely to be as negatively affected. Photography is different because it is a profligate medium, easily copied, easily anonymised, and just about impossible for authors to keep control of proliferation.
These two apparently contradictory views of copyright have one thing in common. They are lopsided responses to the powerful lobbying of Britain's "creative industries" - the broadcast, music, film and publishing business interests who aggregate, package, market and sell creative "content". Most of which is made by individuals, most of who are freelances, most of whom sustain themselves on peanuts in garrets.
It is not what the politicians say they intend that is the problem, but how market forces will translate Clause 43 into real life. The creative industries have pulled a fast one here. Mandelson's department of Business, Innovation and Skills has handed them the keys to use almost anything they like, of known authorship or not, on their terms and at our expense. The sneaky genius of Extended Collective Licensing is that it transfers all the cost and hassle of licensing from the user to the creator, who will have to expend literally endless time and energy to retain any control over usage or pricing of their own work, else accept what they are given - if only they can find out whom to claim it from.
ECL is almost certain to become the default, the only, means of licensing photos within a short time. It is microstock by decree, and once the likes of the BBC have it, every other publisher will insist to the Secretary of State that this commercial advantage must in fairness be extended to them too. And that will really be the end of copyright as a mechanism of sustainability for most photographers.
As you might expect, among photographers who have understood this legislation there is near-universal anger and concern. The Intellectual Property Office thinks we don't understand the Bill and are misrepresenting the Government's benign intent. We think rather that they don't have a clue what they are actually legislating, they neither understand our business nor the predatory nature of the "creative industry" they have buddied up with.
It certainly isn't that we object to public interest use of genuine cultural orphan works, but when you look at the requirements of the Museum sector you find some mission creep. For instance the British Library talks not about "orphan works" but "rightsholders difficult to find', and that the key issue is 'saving the institution time and money'. And they don't want to pay anything for work not created with commercial intent. And licenses should sometimes be free. And educational use should be free.
So much of S43 is being left to regulation that we really can't say how much is going to become law after consultation, but Mandelson has said that he wants cultural organisations to be able to earn money by licensing their work for commercial purposes. Consequently doors have been left open for commerce to slip through and take up residence. "Blanket license for any use" (© Peter Mandelson) is bugger all to do with assisting some museum to make copies of crumbling historic photos for conservation and exhibition. It's about making money. And if anyone is going to make money from our work, we'd like to be included in the conversation. It's only polite not to rob.
During the IPO meeting on 26th February I asked "what do you understand by ‘blanket license?'". I was hoping to discover whether they meant rights managed or royalty free?, whether single or multiple use? whether limited or unlimited duration?, how purpose might be restricted? Or what?... The IPO (I am forbidden from naming the individual by their rules, this isn't an accountable democracy you know) smirked at me as if I was a blithering clueless idiot, and replied "reprographic".
It was an answer that betrayed a bottomless incomprehension of our world. Further inquiry was futile. And these are the guys making the rules that will determine whether we shall have a profession or a loss-making hobby. These are the guys we shall have to appease in consultation if the DEB passes into law.
Tuesday will be the one and only chance for photographers' concerns to be finally aired in the Commons. Almost certainly they will not be. The nuances of our world are if anything less intelligible to MP's than to the IPO. OK, we know the LibDems have "serious reservations" and some thoughts about inserting last minute amendments, but they seem gestural and likely to fail. We know the Tories will "robustly oppose" the clause. At this stage there is only one truly useful outcome, given the lack of time for the extensive debate and amendments it requires : that S43 be scrapped. But more likely it is headed for a deal behind closed doors in the Wash-Up. Our futures will then depend on political horsetrading by persons unknown. "Tell you what gov, you can have the orphan stuff so long as you dump that nonsense about A&E departments in Grimsby". We will never know.
Their lobbies are bigger than our lobby
S43 is no mere flash in the pan of accidental stupidity and carelessness. It has taken years of sterling effort by the great and the good to achieve law this open to abuse. Alerted finally to restlessness among photographers, the Intellectual Property Office has insisted it's our own fault for not being organised or coherent enough to sensibly contribute earlier.
This is, frankly, bollocks. But IPO is telling us something about how Government operates. That only lobbies of weight and authority really get a look in. Votes or wealth are what matter. We fail on both counts, apparently.
For historical accuracy, some of us worked on the submissions to Gowers, Lammy and the IPO that were ignored. Some of us critiqued the conclusions reached. We noticed that Gowers did not consider photography in his report. This was carried forward : Lammy had no idea that photography was a copyright matter that fell within his remit until informed by the NUJ's copyright consultant Mike Holderness. Both Gowers and Lammy listened to the louder, far more powerful lobbies of consumer interest vs. the media and publishing industries, and determined that their role was basically to adjudicate between them.
The opportunity for fundamental reform of copyright has been totally missed. Misdiagnosis has led to perpetuation of the disease. The brute commercial power of corporates vs. the brute selfishness of consumers has got us where we all are today, yet Government has tried to fiddle here and there and has pronounced copyright fit for the digital future. Wrong. The creative industries have just been given bigger whips to keep themselves in the manner to which they are accustomed.
The public now sees copyright as a tool of monopoly and corporate greed rather than a mechanism of fair reward. That sense of injustice inspires mass consumer theft of IP as a Robin Hood act. A whole subculture has formed around this notion, buttressed by academics and web idealists who conflate freedom with "free". They have the tools and the machinery to defeat any restriction, they have the motivation and opportunity. You can't take a few million people to court. You probably can't kick them off the internet without self-harm either.
The inconvenient truth for Government is that our whole society is now contemptuous of copyright when it suits. For photographers, infringement and unfair treatment are equally systemic among our clients, government included. Whilst the public also steals from us, that damages us less than the bullying imposition of unfair contracts and the routine commercial use of our work with no intent to pay. Photographic infringements are seldom worth more than a hundred pounds or so. Copyright has become, like libel law, a rich man's prerogative, practically unenforceable by creators themselves, especially when confronting well-heeled corporate legal departments. Yes, we know maybe we'll get tribunals sometime, but the last we heard costs would not be recoverable. Another chocolate teapot in the making it seems.
Photographers know all this, we live it. We do not have the technical means to detect infringement nor the legal means to act effectively against it.
And please don't tell us there is such a thing as "diligent search". If there were we would have been using it for years to catch infringers, instead of tip-offs, luck and guesswork that let the vast majority escape undetected.
None of this is new. It's just that Government didn't listen.
There is a solution, which has been argued for since before the 1988 CD&PA. Opposition from the publishing lobby saw to it that our moral rights were partial and ineffective. Too onerous and expensive for them, they claimed. 32 years of this has given us much of the "orphans problem" that publishers now complain is inhibiting their enterprise. Continuing opposition has shaped a Bill that ludicrously enables the use of orphan works whilst doing nothing to require the users not to create orphans. Irrespective of public interest pleadings, this is just wrong.
If copyright is ever to become rehabilitated, individual creator's copyright has to become in part an inalienable civil right. And unfair contract law has to extend to IP, which at present it does not. Equity has to be restored, because the market has given us only lazy, greedy monopolies opposed by an angry, thieving public, with little scope for the survival of creators. How can creativity and culture flourish without creators? It's a question that nobody except creators is much bothered about, it seems.