At the Intellectual Property Office meeting on the 26th of February, a rather wonderful thing happened. All the attending organisations and representative bodies agreed with each other. If there was to be a means of licensing for orphan works within the Digital Economy Bill, then there was a need to restrain the creation of orphans by obliging publishers to attribute work, and a need for a duty of care toward metadata.

This seemed reasonable and obvious to all concerned. Nobody backed down.

On 9th March there was another meeting, this time with DACS, the Design and Artists Copyright Society. Most of the delegates who had been at the IPO meeting attended. The purpose was to see what DACS had to say and whether there was any common ground. As it happened there was. DACS came across as very much on the side of photographers, and uncomfortable with the commercial aspects of licensing contained within the DEB. There was further agreement about the need for publishers to be obliged to respect attribution and metadata.

The rest of the meeting was spent discussing the advisability of undertaking research to use in consultation should the DEB pass. Again everybody agreed. At the end some of us briefly discussed Getty's proposed letter. The British Association of Picture Libraries and Agencies had alerted Getty to the DEB and CEO Simon Cliffe thought he could improve the letter in conjunction with Paul Ellis of EPUK.

The initial revisions to the Getty letter were discussed on the DEB43 pan-organisational mailing list. The redrafted letter bore little resemblance to Getty's far more robust version. Group editing was a frustrating exercise as objections were made, mostly by EPUK, and then subsequent drafts produced mostly by BAPLA, which seemingly reflected little of the previous dialogue, so then we'd go around the same loop again.

By draft 6, an edit by Stop43 founder Paul Ellis, we'd got a tepid but inoffensive draft that I think everybody agreed to endorse out of sheer weariness.

BAPLA rewrite

BAPLA then announced everybody had agreed to draft 5, which BAPLA had produced, but wasn't a lot different. It wasn't worth arguing. BAPLA then took draft 5 away, returning a week later with a radically rewritten version.

Where this lot of revisions came from I don't know, but they were not the product of open discussion on DEB43. Getty probably had some input as their logo had appeared on the draft, but other organisations may also have contributed.

BAPLA didn't circulate this final version via DEB43 (further argument and delay would have ensued), but offlist to individuals. I replied that I would certainly have things to say, but was working until late and would have to revert to them later. I copied the new draft to the EPUK moderators for later discussion. The next day I was out until mid-afternoon, but returned home to find BAPLA had sent the final version, relieving EPUK of any further input or decision about signing.

I contacted Getty's London PR to find out the status of their original draft, which EPUK far preferred, and was told "a recent decision was made, in light of the BAPLA letter, to drop ours and to get behind BAPLA's to demonstrate industry unity."

I understand that BAPLA wanted to be able to say "the industry is united behind a single flag, BAPLA". Unfortunately they broke the one real element of unity that existed, that Clause 43 of the Digital Economy Bill was unacceptable. As Viscount Bridgeman said in the Lords, "It is a logical and legal absurdity to talk of licensing works whose authors cannot be identified while there are still significant groups of authors who do not have the right to be identified..". For us at least, it was a logical and legal absurdity to allow S43 to pass into law with these issues unresolved.

I believe that BAPLA made up their mind that fighting the DEB was pointless and waved a white flag of consultation at the IPO with that letter, persuading Getty to drop their tough original document. That wasn't agreed at DACS or anywhere I know of.

A letter that says "we don't like it but look forward to collaborating," and a campaign to Stop43 was the resulting split. Some organisations backed both approaches.

Capitulation out of fear

EPUK and several other photographer organisations could not sign that letter. In my view the letter was born of a mistaken ambition to broker peace in our time.

The BAPLA letter was written in fear of unstoppable political process, fear of eventual EC imposed solutions, fear that further opposition would only result in reduced IPO cooperation in consultation. The IPO made that threat according to an allegation made by one of the representatives who signed the letter. If that's the sort of consultation we can expect, what hope is there for a fair outcome?

The hedged bets are significant here. The NUJ and AOP, both of who signed the letter, simultaneously signed up to EPUK's Stop43 campaign. The British Photographic Council is an umbrella organisation that includes the NUJ, EPUK, BPPA, Pro-Imaging and BIPP. Although the BPC signed, those constituent organisations all supported EPUK's Stop43 campaign.

Which leaves the Royal Photographic Society as the only photographer organisation signer not also campaigning against Clause 43. The RPS is a venerable society of mainly amateurs who do not depend on copyright for their living. Perhaps confrontation is not their style.

The other signatories - Getty and DACS - are not photographer organisations, but, like BAPLA itself, are marketing and licensing middlemen. They are not creators of photographs; none rely on copyright of their own work. Perhaps they lack the moral outrage of being personally robbed by Government. Perhaps they want to license orphans? That is DACS role. I've heard repeated rumours BAPLA has ECL ambitions.

The fact is that we have only got anywhere at all by fighting for fair treatment on principle, and that will continue into consultation and forever if this wretched bill passes. We expect we shall have to go through all this again when the EC decides how it will regulate orphan usage, but at least Europe has a baseline of inalienable authors' rights to balance incursion. Unlike the UK. where authors are legally little more than fishfood, thanks to ineffectual law.

The BAPLA letter has been damaging. It has been pointed to by the Liberal Democrats as evidence that the entire photographic industry finds Clause 43 acceptable so need not be removed. Final confirmation that Faustian pacts have a price came when Stephen Timms waved the letter as an indication of approval of S43 in the Commons. By not fighting for what is clearly right, the signatories have ended up assisting what they claim to oppose.

We have no choice but to point out that almost every photographer organisation supports Stop43 despite the signatures of some on the BAPLA letter. The real question is : why BAPLA, Getty, DACS and RPS do not, and why they abandoned the high moral (rights) ground, and with it any claim to speak for us?