The Intellectual Property Office has invited photographers' representative organisations to a meeting this Friday in order to hear photographers' concerns about the Digital Economy Bill. You can read more about this consultation at the BJP. In fact it is a series of meetings. There are at least two on Friday, and we believe, meetings with other creators' groups and the orphan work licensing bodies are happening the previous day. On learning of this a representative of one of the invited organisations said "it looks like they may be trying to divide us. I know I'm not the only one who thinks that. Chances are Ed [Quilty - Director of the IPO Copyright and Enforcement Directorate] just wants us all silenced".
Right Idea, Wrong foot
What has not been reported is that, according to the Conservative Whips Office, Government plans to publish amendments to clause 42 on Thursday, the day before the meeting, leaving almost no time for photographers' representative bodies to evaluate the changes or react sensibly.
Orphan definitions, the register of orphan use, code of conduct for bodies empowered to license orphan use, and distribution of fees have all been mentioned as featuring in these amendments, and moral rights are also undergoing consideration.
As one experienced negotiator (a different one, also necessarily anonymous) said of the coming Friday consultation "It sounds like they want sort things out with the collecting societies then call us in and tell us what they have decided. Friday will clearly be a case of them revealing very limited concessions to us as their final word. To me the most important point there is to deny them their planned PR coup - they must not be allowed to get away with saying, 'We have now met the photographers' concerns '."
Two weeks ago IPO's Quilty was rumoured to be fed up with photographers' alleged intransigence. At that point no further meetings were planned and there were hints that civil servants would repay further obstructive objections after the Bill had passed. This new willingness to listen, or at least have to deal with us, seems not entirely unconnected with the huge surge in awareness of the deficiencies of the Bill. From feedback we know that many MP's have received letters and queried the orphan rights provisions with Secretary of State Peter Mandelson and Digital Britain minister Stephen Timms. This has certainly had an impact already.
It's not what they say, it's what they don't say
We wish we could report that our concerns are now being addressed, but there isn't much sign. Timms letter, and several MP's, have said that "Government has tabled amendments to the provisions regarding Orphan Works and Extended Collective Licensing... Among other changes, the amendments introduce a definition of 'orphan work' into the Bill, as well as details of what is required in the way of a diligent search".
It isn't clear whether Timms is referring to amendments already introduced at the Lords Committee stage, which attempt both of the above, or further amendments yet to come. We can only hope the latter is the case. The procedure for diligent search, appropriate though it may be for textual material, is close to meaningless for images. By this measure orphan status will be easy to certify on a "I'm bored, I've done enough" basis. You just can't search for photographs any way except visually. If it were practicable there wouldn't be all the orphan photos that are allegedly such a problem and require legislation in the first place.
As expected, Government is still determined to defer as much detail as possible to regulations. "It would not be right to fix this level of detail in primary legislation, nor to make these decisions without proper consultation of those affected (including photographers)" insists Timms, without explaining why it would be right to grant Government a blank undated cheque. Even if consultation were to result in an equitable deal, any successor Mininster of State could summarily change the rules. Most photographers will not accept their title to their own work being so exposed.
Timms goes on to claim that photographers will be "able to claim payment for any use of their work, and to opt out from any use of their work. This maintains the exclusive control given to creators by the copyright system". How authors will know their work has been used from a (possibly textual) register remains unknown. Presumably we will all have to read it regularly like horse-racing results, as punishment for letting our work get lost and used by someone else. Even more puzzling is "Opt-out". How will the licensing authority know not to grant a license against work of unknown authorship because its owner is opted out? Untangling of this paradox is beyond us, if not the Minister.
Timms assures that "if misuse took place under the auspices of a regulated orphan works scheme, then those responsible could be potentially liable for sanctions of up to £50,000... This is a considerably stronger deterrent than that available currently (which a copyright owner would have to go to Court to obtain) and so will help photographers rather than harm them."
We see nothing to suggest that infringement will cease to be the massive problem it now is. For that to happen, we would need the mandatory attribution that government is refusing. Orphan usage will be an extra hazard, not a replacement for illicit use by people who don't care about the author's copyright anyway. And what Timms doesn't say is that this £50k penalty is part of the hidden regulations, not the Bill. Until he tells us otherwise we confidently predict the £50k penalty will be due to the orphan licensing authority who has been hoodwinked, not the photographer.
Still, it is what Timms and Government are not saying that gives the greatest causes for concern.
There is only silence on why Government seeks to issue blanket licenses for commercial exploitation by any user, not the carefully-drafted limited license for non commercial use that would satisfy the public interest argument made by cultural institutions. Well now we know part of the reason : the BBC was named by one MP who has been digging. The BBC is likely sitting on a vast collection of orphan works of all sorts, music, film, scripts, features. It is also in possession of many tens of thousands of user-donated photos. We can only guess that many have become divorced from their donor's details and their original terms of supply. Not only would this mean the BBC can't presently use them, nor could they sell them on to third parties. Of course, the BBC regards itself as a paragon cultural and non-commercial organisation, with a duty to the taxpayer to make as much money as possible.
There is also no mention of the enforceable moral rights that might restrain orphaning. As it happens, we hear this is a likely concession of a sort, that moral rights will no longer need to be asserted. Government may even extend them to include newspapers and magazines. However this will be a sleight of hand, skipping the crucial "enforceable" aspect. Moral rights, including the right to be identified, will continue to not be worth the HMSO paper they are written on unless automatic statutory penalties are introduced. At present all you can do is sue for damages. Nobody ever has in 30 years because the damages are simply unquantifiable..
We've also seen government deflections of any need to address the generation of orphan works allowed by lack of attribution. We are told we should not be concerned because it is, they point out, as if we didn't already know, "already illegal" to remove metadata.
So it is. But if you read the Copyright and Related Rights Regulations 2003 you will see the reason why this too is useless. You have to be able to prove the miscreant "knows, or has reason to believe, that by so doing he is inducing, enabling, facilitating or concealing an infringement of copyright." This is utterly unprovable in an environment where metadata gets routinely lost or erased accidentally. Every publisher who's ever been challenged has always said 'sorry, it was human error' or 'it's a software bug' (same with bylines, QED). There has never been a case over a photo, and never will.
Regrettably the 2003 regs are, like moral rights, law made by no doubt well-meaning people who don't understand the problem they clearly think they fixed years ago. That's why mandatory attribution is needed now.
Copyright Action/EPUK will be at the IPO meeting on Friday. We will let you know what happens.