The Intellectual Property Office put up a page to reassure photographers just over a week ago. It reflects the Government position regarding orphan works provision in the Digital Economy Bill, and what Labour MP's are being told when they raise the matter with relevant ministers. Unfortunately it signals continuing failure to understand the issues. We find it necessary to yet again attempt to explain to this constitutionally deaf Government why, although nobody objects to genuine, non-profit use of cultural orphans for the public good, what it has constructed is a recipe for abuse and destruction.

The Digital Economy Bill: What it means for photographers

There are several areas where copyright law in the UK is currently developing. This includes provisions in the Digital Economy Bill to create regulated schemes for licensed use of orphan works and extended licensing by collecting societies. This page explains some key issues and corrects some of the more common misconceptions about the Government’s plans and policies.

We are aware of some concerns about how these changes might affect the way professional photographers do business, so parts of this page are particularly aimed at them.

What are Orphan works?

Orphan works are works protected by copyright, but where the rights holder cannot be identified or found, even after a genuine and diligent search has been made. Although all types of work can become orphaned, the problems for the most part arise from unpublished letters and diaries, old books, or archival sound and video recordings held in museums and libraries. These may of course include photographic illustrations, or separate photographic works.

There is a large difference between an author who cannot be identified and one who cannot be found. Classically orphan works are those whose authorship is unknown and appears abandoned. Expanding this to include works whose author simply cannot be contacted goes beyond European Library Guidelines which the Government earlier claimed to be following. People can become uncontactable through moving to a different address, through changing email provider or name through marriage. Those with common names like John Smith will never be findable once "lost".

All of this is intensified by the scope of this legislation to include any photograph on the web whose author cannot be found. According to Victor Perlman, attorney for ASMP, in his 2006 testimony to the US Congress, 90% of image use on the web is infringing use. Infringers do not often identify the source they have stolen from; metadata - if it ever existed - is usually erased in the process. Once a photo has been copied without metadata or attribution, it will often be copied repeatedly, creating whole sub-trees of orphans. Finding the original published image may be impossible.

Goverment has attempted to specify a "diligent search" that must be undertaken before a license may be granted. It appears nobody has ever attempted to test the specifications. They are simply irrelevant for visual images that lack all textual information. One may as well try looking up a photograph in a copy of Hansard.

Why is the Government acting?

Access to orphan works is important from both a cultural and economic perspective. The BBC and British Library both experience difficulties - the British Library estimate that up to 40% of its archive collection is orphaned. Some institutions have very reasonable plans to use orphan works - digitising and making available historic material - but without the permission of the copyright holder such use may be an infringement of copyright and possibly a civil or criminal offence.

If this cultural perspective were the whole truth there would have been no opposition to the Bill. Unfortunately the shape the Bill has taken reflects less benign commercial agendas. Whilst few would argue with museums needing to gain access to orphans within their collections, things get a great deal muddier when it comes to the £4.6Bn/year BBC, that in most respects behaves as an intensely commercial entity. The BBC has a long history of predatory practice where photographers are concerned, with recurrent attempts to impose rights grabbing contracts and some notoriety as an infringer. In recent years it has switched to crowdsourcing, only after many public complaints making its terms of submission adequately clear to avoid accusations of gross unfairness.

Still perhaps the BBC has amassed vast numbers of orphan photos that it wishes to deploy for the public good. But the BBC's definition of the public good will include anything that saves the taxpayer money.

Here we come to a crude and crucial error by Government. The Secretary of State Peter Mandelson has made it abundantly clear that he not only wants cultural institutions to be able to use orphans for the benefit of the public, he wants them to be able to sell their usage to anyone else who wants to use them for any purpose. Presumably Government insists on this because it believes profit from orphan licensing will alleviate pressure on taxpayers. And so it will, but at a cost to copyright holders who can no longer be found, usually at no fault of their own. This is robbing Paul to pay Peter.

What is the Government doing?

The provisions in the Digital Economy Bill introduced on 18 November 2009 and currently before parliament will enable the Government to create a solution to the problem of Orphan Works. The changes will provide the Government with powers to authorise and regulate suitable bodies to operate orphan works licensing schemes. Before any of this can happen the Government is committed to a wide ranging public consultation, to make sure the rules are fair and workable.

We have been through many years of "consultation" already, and every significant point placed before Gowers, Lammy and the IPO has been ignored and discarded in favour of more powerful lobbies' requirements. At this stage we would have to be gullible idiots to believe further consultation will turn out any differently.

When will this happen?

Public consultation is currently planned for some time in the second half of 2010. The consultation will be wide ranging to ensure as many stakeholders as possible have the opportunity to make their views known and are able to help shape the details of how orphan works will be licensed. Following that consultation work will be done to develop the secondary legislation to create the first authorised schemes.

We have no confidence in any of this, and with good reason. Government remains obdurately opposed to any measures that might reduce the creation of orphan works, namely obligatory attribution or legally enforceable measures to restrain the removal of metadata. The reason is that the publishing lobby declares that it would find such requirements onerous. It is keen to see orphan licensing implemented however. Why, you would have to wonder, if orphan licensing is being undertaken to make life easier for museums, galleries and conservators, is the publishing lobby involved at all? Someone is not being entirely honest about motives here, Minister.

How exactly will the schemes work?

Until the consultation has taken place it would be premature to speculate on exactly who might have access to licences, how the licence fees would be held and other administrative details. The system will be a flexible one, as it is clear that what is appropriate for one set of circumstances won't be appropriate in another.

Yet MP's will vote blind on legislation that will determine the copyright framework of the UK for probably the next 30 years. If Government genuinely does not know what it intends, why is it legislating at all? All the signs are that it has a very good idea what the secondary legislation will contain, and it just wants to shut down debate and dissent until it can simply impose its preferred solution after due consultation that it can override in the now time-honoured manner.

What does this actually mean for photographers?

Although the administrative details have yet to be worked out, the important thing to note is that any schemes created will operate on a regulated and licensed basis. That means that before a user can apply for a licence to use the work, they must first carry out a diligent search for the original owner of the right. The required steps are outlined in the Bill itself, but as the appropriate searching techniques are likely to be different for different sectors, the details for specific types of work will be fixed in the secondary legislation, after consultation.

This is just drivel. Please, please, please IPO, try it for yourselves. Start with an unknown photograph and see where your "diligent search" guidelines get you. In practice, unless well-known works are involved, none of it will get you anywhere. You need only check on Tineye to make sure no authoritative copy exists and the rest will simply be a box-ticking exercise safe in the knowledge that nobody will ever be able to prove you should have found the work on page 327,497 of Google Images.

Will this allow people to use works for unfair prices?

Certainly not! The Government is aware of many photographers’ concerns that orphan works will create a means for content users to appropriate large amounts of their hard work at an unfairly low cost or for free. Any use of an orphan work will require payment of a fair licence fee, and this fee will be held safely and kept available to be claimed by the rightful owner should they come forwards.

Baloney. There is no such thing as a fair price except that agreed between buyer and seller. For many photographers, £1 microstock pricing would be enough. For many more, the agreeable price might be 100x or 10,000x as much. It all depends on skill, the cost of creation, the profile of the photographer and their business sector and model. Inevitably works of unknown authorship will command unknowable prices, so in practice Government will adopt some lowest common denominator pricing that we would expect will look more like microstock, because amateur photographers outnumber pro's 25:1, and because that is, increasingly, where the only market is.

The Government’s intention is that there should be no financial advantage from mis-identifying a work as an orphan work and that deliberate or negligent mis-identification should carry an appropriate penalty.

Government loves to give us chocolate teapot laws and pretend it has solved problems. We already have unenforceable moral rights (because assessment of damages is in practice impossible). Then in 2003 the removal of metadata was outlawed, except the impossibility of ever proving it was done with intent to infringe or conceal infringement meant the law may as well not exist. And now we are offered imaginary penalties against defective or fraudulent searches that will never in practice be capable of proof because "diligent search" is simply impossible where images are concerned. The fraudulent searcher would have to be freakishly unlucky or delinquent to fail to escape. Therefore, one may cursorily search with impunity.

Subject to consultation, any regulations would be designed on that basis. The Government takes this to imply that licensing of orphan works would be at the market rate, where one exists; the intention would be that, as far as possible, rights holders would get a similar return regardless of who licenses their work (for instance, whether a collecting society or other body). Not only would this minimise any financial incentive to misidentify works, but it would also guard against unfair distortion of existing markets by protecting the interests of returning rights holders.

In the context of the cultural non-profit use of orphans, all of this would be fair enough. But you have left the door wide open to permit the commercial use of orphans by businessmen looking for profit for themselves. Of course this will cost creators. If you give power to an organisation like the BBC to set rates at which it will license work to itself, how do you expect it will work out otherwise? One may as well hang an honesty box on the wall and distribute the contents to creators.

What happens if people use photographs that shouldn’t be considered orphan?

Currently, if photographic works are used without permission, the rightful owner usually has to take legal action to gain redress for the unauthorised use. However, if such a use is made under an authorised orphan works scheme, then there will be a clear point of contact and a simple process by which the rights holder can check for use of their works and claim the money that is being held for them.

A simple process, that Government is however unable to define. We are told there will be a register, or registers, of orphan works that have been granted usage licenses. Whether or not this, or these, will be visually searchable databases or a dusty ledger on a civil servant's desk, remains to be seen. But whatever mechanism it is, every photographer in the UK will need to periodically search to find out whether any of their work has become orphaned and licensed. If they don't, they will never know, and what happens to the money then is equally undefined. Bona vacantia is just in case you don't have a better idea. Yeah right.

Furthermore, if a content user fails to act properly and comply with the terms of the orphan works authorisation (for example by not carrying out a properly diligent search), then they would be subject to regulation and revocation of their permissions, as well as being liable for substantial financial penalties. It is anticipated that this will actually improve the situation for creators such as photographers whose work is sometimes orphaned.

Only if you believe that "diligent search" is meaningful and can be distinguished from a negligent search. Then only if you believe a market rate is equitable, in a market already oversupplied with free and almost free work and awash with publishers and public alike who have no reason to avoid orphaning our work.

Shouldn’t this be limited to non-commercial use?

The key point to ensure fairness to rights holders is not an arbitrary distinction between commercial and non-commercial use: it is about ensuring that there is adequate regulation of organisations running orphan works or extended licensing schemes. The Government is aware that different sectors have different needs, and these provisions will give the Government the flexibility to tailor the details of licensing schemes so that they are appropriate for different areas. If it proves impossible to devise a scheme for a particular area that does not unfairly disadvantage rights holders interests, then the Government will have the flexibility to not authorise any schemes to be set up in that areas.

Masterful evasion. Actually the key point is very much a non-arbitrary distinction between commercial and non-commercial use. Non-commercial use would pose no threat to the commercial value of the work, where commercial use can destroy it entirely and forever in the case of photographs. We don't want Government to have the flexibility to ignore this key point, because it is far too important to be left to the influence of the publishing lobby who would like nothing better than everything on their own terms.

What did the delegated powers committee say?

The Delegated Powers Committee suggested that the clause should include an explicit definition of orphan work, and that regulations (secondary legislation) made under the provisions should be subject to affirmative procedure (which means they will be debated and voted on in both houses of Parliament). The clause has now been amended to address both of these points, as well as a number of other minor concerns raised by the committee.

Yes, the explicit definition is an improvement on no definition, and yes, it is better that MP's might get to discuss these major legislative changes than not. But it's a long way short of "dligent" democratic process given the way that the Bill is going to be rushed through the Commons without the possibility of proper debate or amendments, and end up in the Wash-Up, with party whips deciding the fate of UK photography.

Metadata is easily stripped from photographs, doesn’t this make everything on the internet ‘orphan’?

No. Just because a photograph does not have a by-line or electronic metadata attached does not mean it can be considered orphan. A diligent search will in most cases still allow the original rights holder to be identified through the searching of databases, advertisement of the intention to use, use of electronic messaging (in the case of sites such as Flickr for example) and other steps. The effectiveness of electronic searching will also increase as image recognition technology improves. The effectiveness of available search tools will be taken into account when considering whether or not it is appropriate to authorise a scheme covering a particular type of work.

It's true, absence of metadata does not make an orphan. But inability to find an authoritative copy complete with metadata or byline does make an orphan. Which is why for any search to be "diligent" it would have to rely on visual search tools that do not exist. But even if they did, we'd still need the metadata and byline to establish ownership. Unfortunately Government appears to be fully in favour of the continuing creation of orphans, at the same time as it seeks to enable their use. This is either egregious or stupid, as we keep saying.

It should also be noted that there are already provisions in law to prevent the removal of metadata if the person doing so is aware that it may facilitate infringement of copyright (see section 296ZG of the Copyright Designs and Patents Act 1988). This means that stripping photographers’ work of metadata to claim it as “orphan” is now and will continue be unlawful.

It should also be noted that this is wishful thinking verging on misdirection. Whilst metadata is accidentally lost through software, carelessness and negligence, it remains entirely impossible to prove intent to infringe. Just about every newspaper and magazine in the country has been stripping and sabotaging metadata for getting on for a decade, with the supposedly coincidental consequence that they then don't know who to pay. So they mark up the photo as "await invoice", just to show how innocent the act was. It saves them a fortune in repro fees, and there has never been a case under 296Z and never will. We bet they never told you about that aspect of their objections, eh?

Isn’t it unfair to do this without changing moral rights?

The provisions in this Bill do not change the existing system of moral rights. We are aware that some creators would like a change in the way moral rights work, particularly with regard to the right to identified as author of a work. This is however a polarised debate: publishers and users of copyright works are concerned that any change would prevent them from carrying out legitimate editing activities and add unacceptable overheads to established business practices.

Yes, we know. Our moral rights were hobbled by the same argument from the same publishing lobby in the 1988 CD&PA.

The government has committed to continue to keep the case for a change under review.

The Government has already had since 1988 to do something about feeble moral rights. A major reason there is an "orphans problem" now is that publishers have been mass manufacturing orphans all that time. Why punish creators for the refusal of publishers to attribute work?

What can you do if you still have concerns?

If the Digital Economy Bill becomes law, then the government has committed to a broad consultation before legal rules for orphan works schemes are developed. At this time (planned to be the second half of 2010) we would like to hear from creators and copyright owners of all types, as to what they believe the issues are for them. The consultation process will be widely publicised, and you will be able to contribute your views at that time.

Forgive our directness, but we do not have to persuade you to allow us to retain title to our own work. You propose taking it from us and we object, have objected and will continue to object until it simply isn't economic or worthwhile to attempt to create anything under your reduced copyright law.

The Digital Economy Bill is, Government claims, its attempt to equip Britain's creative industries for the digital age. We don't think you have done that at all. We think you have listened to the middlemen and mistaken them for creators. In the same way that supermarkets don't grow wheat or farm chickens but exert inordinate power over those who do, publishers and aggregators don't create photos, they just retail them. We live in a damaged and marginal market ecology that won't take much to destroy completely. All we ask for is some minimal "fair trade" guidelines. They are not in this Bill.