Today's Intellectual Property Office meeting with 14 photographers' representative organisations about the Digital Economy Bill produced few surprises on either side.
Issues raised by photographers included exclusive contracts, works owned by aliens, model releases, and privacy issues surrounding minors and private social photographs that are protected from publication, all of which would be undermined by orphan licensing.
The IPO spent some time not answering these points but explaining the nuances of Extended Collective Licensing and Orphan Works, and how these and other concerns would all be resolved during consultation and the formulation of regulations after the Bill was law. The discussion was at times bewildering ("you cannot understand a Bill by reading the Bill" we were told).
The IPO remains adamant that the Digital Economy Bill now represents a fair, balanced and final legal framework for stakeholders. Photographer stakeholders did not see it that way. There was an unavoidable stand-off over enforceable moral rights and protecting metadata.
The same question was asked many different ways : why concentrate on addressing the sympton of orphaned work when you allow the disease of their creation to continue untreated? Photographers have been asking for enforceable moral rights since the 1988 Copyright Act. Consultations since 2006 have also pressed for removal of metadata to become illegal. Although in theory outlawed in 2003, the law is unenforceable. Publishers' carelessness or negligence over 30 years is partly why there is an orphan problem, and threat, now.
Each time the IPO would listen, then explain there was a balance of interests, yet photographers' interests appeared to be nowhere in sight.
Extended Collective What?
One slight surprise was the extent to which Extended Collective Licensing schemes appear to have assumed an even greater priority for IPO than orphan works. The IPO said that orphans are becoming complicated by safeguards, and it was admitted that if it became too cumbersome the costs could become prohibitive for anyone hoping to use the scheme.
Extended Collective Licensing however may enable the BBC and British Library and (at present) 22 other organisations to circumvent normal ad hoc licensing. A collecting society comprised of suppliers would negotiate a standard "fair market rate" which would be charged for each usage, and the fees divided between members of the society. Opt-out would be possible, in which case individuals would negotiate their own rates. It all sounds like a collision of self-billing with the secondary-use licensing operated by DACS at present. Whilst convenient for all concerned, there are likely problems of the ECS rate becoming the only rate available, and lock-out of opted-out suppliers.
But the main sticking point, on which all photographer organisations were unanimous, remained the need to restrain the creation of orphans by obliging publishers to attribute work, and the need for a duty of care toward metadata.
IPO made clear that these are aspects which are strongly opposed by stakeholders (meaning publishers) and there is no question of amending the bill to accommodate our requirements. Their attempt at a helpful suggestion was that photographers go away and sponsor our own bill to achieve what we want.
The DEB is now up against severe time constraints. It will be back in the Lords on Monday for the Report stage, and IPO confirmed the Bill is headed for the "Wash-Up" - the few days after an election date is announced during which Parliament tries to clear pending legislation. This means little or no debate, just horse-trading between the parties followed by an agreed vote controlled by the Whips.
If the Bill passes we will be stuck with the current chocolate-teapot moral rights, evaporating metadata, onerous and uneconomic infringement procedures and all the orphan works and ECS stuff as a new layer of hazard as well. All in the name of encouraging UK's creative industries.
But it's not over yet. For photographers it comes down to either killing S42, the section that enables orphan licensing and ECL, or hoping the whole DEB falls on its face.
Either are possible. The "Wash-Up's" defective democracy is pretty much consistent with the rest of the Bill and Jeremy Hunt, Shadow Secretary of State for Culture, Media and Sport, is now onto the "wide ranging and unconstitutional power" Mandelson has awarded himself. Hunt has already announced that Tory and Lib-Dem's will vote down S17 because of the statutory instruments that allow the Secretary of State powers to single handedly change the law. Such SI's are sometimes called Henry VIII clauses. Hunt has now noticed that S42 has more Henry VIII in it than Anne Boleyn.
If Hunt does act against S42, it will be a short war. If S42 stands on Wednesday, there is going to be a lot of lobbying needed in the next few weeks.
[EDIT: This story earlier included a hearsay report that DACS had pulled out of Orphan Works licensing. This has now been retracted as incorrect].