Wednesday, 20 January 2010

Digital Economy Bill- Copyright Alert!

The teen years, the twenty tens, could bring big changes to the way copyright is handled. While we were all busy winding down for Christmas, The Digital Economy Bill went through two readings in the House of Lords, and now early in the new year it is hurtling through the parliamentary process on timetable which will make it a done deal by the election. Should we be concerned? You bet.

Anyone reading reports in the press – mainly the British Journal of Photography which has been manfully reporting on the bill since mid November – will be wondering what the lawmakers are cooking up. Associations like the AOP, BAPLA and The Societies have been watching progress of the bill, but reports before Christmas told us they were waiting to find out more before making any comment. Finding out more was not an easy task. Detail on how the provisions are to be put into practice for our industry are simply not there.

The bill casts a wide net to include copyright and copyright infringement in all media, without much reference to differing business models already in existence. Designed to deal with changes in business, and expectations in the digital age, it addresses issues like the downloading music from the intenet and the switch to digital radio, as well as more general provisions to make things easier for copyright holders and the people who use their works.

The bill outlines changes which could present serious threats to copyright holders and businesses working in photography.

The creative industries, says Lord Mandelson, are at the heart of the discussions, but the bills remit is about wider legal frameworks and infrastructure, about readiness in the economy, competitiveness and growth.

The question is, whose growth is being referred to? This is where we need to get down to what's actually in the bill.

In the photography business we are mainly concerned with the clauses relating to Orphan Works, collective licensing provisions, and changes to the copyright law.

Overall, the idea is to 'simplify copyright licensing and facilitate access to works that are currently locked up' at the same time as making it easier for rights holders to enforce their rights.

Orphan Works legislation is being driven by public sector archives, and by publishers. The museums and public archives sector wants to release for use the millions of images currently in the 'orphaned' category, that is those images for which the copyright information cannot be found (Culture and Commerce on Demand). Publishers also have an interest in works being more available.

A bill was introduced in the USA 2006 and again in 2008 but failed to make it into legislation, due to widespread concerns over its effects on the rights of creators. In 2008 The National Press Photographers Association published a statement which included the following "Unfortunately what began as a measure to allow librarians, historians and educators increased access to older copyrighted works has become a misguided attempt to dilute current copyright law, which is something that we as an organization of photojournalists cannot support.”

That just about says it. Most people are keen for the public sector to be able to make available to the public works they hold, for which they may not have copyright details. But the idea of sweeping into the same net the millions of digital images which are circulating without attached copyright data, that is without metadata in the image file, is shocking. The suspicion is that one way or the other, creators’ rights will be eroded.

The Digital Economy Bill allows for 'extended collective licensing' to help streamline the rights clearance process.

This means that collecting societies will be able to 'assume a mandate to license the use of works and collect fees on behalf of rights holders who have not signed up to that society subject to the rights holders retaining the ability to opt out of such arrangements.’

These powers work hand in hand in the case of orphan rights, which will be licensed by centralised licensing bodies or collecting societies which have been give the mandate to do it.

Moreover, the bill gives the Secretary of State the right to amend the CPDA (Copyright, Designs and Patents Act 1988) for the purpose of 'preventing or reducing copyright infringement in relation to technological developments that have occurred or are likely to occur.’ Consultation will be required and Parliament will have 'the opportunity to check that it is fair and proportionate to all parties.'

The arguments in favour of these measures are that the digital age has thrown up challenges which are not catered for by current licensing and copyright frameworks. The problem with the legislation as it stands is that it is drafted to cover all forms of media without recognition of the different licensing systems and business models operating in different media. The detail which we require to be able to judge the effect of the legislation on our own part of the media industry, specifically the use of photographic works, is totally lacking. At the moment it looks as if the legislation gives carte blanche to persons unknown to come up with practical implementations of the laws. How can we respond in these circumstances ?

Take the Orphan Works issue. Will registration of some sort be required to protect works which are on the internet from inadvertantly becoming orphans? This model was proposed in the US, and it could become a creeping reality in the UK if we are not careful. The extended licensing which would cover Orphan Works would be regulated in some way, but we don’t know how or by whom. We have no idea how an organisation would become mandated to license OW's or what the criteria would be, or to what extent they would be required to protect creators rights, whether they could be commercial entities or not for profit organisations.

What we do know is that collecting societies are waiting in the wings to scoop up the work, and that they have always keen to extend the scope of their licensing activities into areas which are currently serviced by pictures agencies and photographers directly. We also know that publishers have an interest in non-granular licensing methods which make it easier for them to get their hands on works for a lower unit cost.

It has been pointed out that while there are categories of images (current affairs and staff photographers) where there is no right to a credit, it is absurd to contemplate legislation which makes it easier to use these works without reference to the copyright holder.

We know that large numbers of images are, and have been, held in publishers archives, particularly in the news and magazine sectors, without permission of the rightsholder. Do those images which have been acquired under the counter so to speak, and mismanaged so that they have parted company with their rights information, now suddenly find themselves on a fast track to copyright abuse?

This could be seen as alarmist talk. We are assured in some quarters that the particularities of the photographic industry are well understood and represented. But until we see evidence for this we can only worry about the fact that so few of the comments on the bill in the House of Lords relate to the photographic business. The overwhelming number of comments were on other matters like the ability of service providers to shut down or reduce services to repeat copyright infringers ( music downloaders, teenagers in their bedrooms). These issues are widely written about and debated.

Those in the photographic business who laboured over the 1988 act will attest to the fact that the business of photography is not widely understood. This will be a critical disadvantage to our industry in the days and months to come, with the danger that our concerns will be subsumed into general attempts to create a 'balance' between the rights of creators and the rights of consumers, in an environment of powerful lobbying interests.

Our job is to ask questions of our representatives and of the lawmakers. We need a clearer picture of how the legislation will be enacted, what the checks and balances are, who will be consulted and in what way. At the same time we need to educate the legislators about the specifics of an industry which has been successfully handling orphaned works for the last 30 years without upset, an industry which is constantly changing in response to the needs of business customers and the pubic, and one which needs for its very survival to have control its licensing.

Rupert Grey was quoted in the British Journal of Photography today saying ‘The exclusive right to copy is the habeas corpus of copyright. Once you take it away you remove the foundation stone on which everything rests – the right of the artist to control his own work. This is the most fundamental change in copyright since it first appeared in the statute books 300 years ago.’

BAPLA has issued a press statement calling for amendments to Clause 116B (see below) and pointing out that because there may be a number of rights associated with an image – trade marks, territory licences, model rights, underlying artists rights- the collective licensing of photographic works could damage more than the rights of the photographer.

The Creative Rights Alliance is working on amendments to the bill to protect creators. BAPLA and the NUJ are part of the group. Things are moving very fast, too fast for most of us to keep up with. But now is the time to ask questions of the people representing the industry. We need to know what is being proposed on our behalf to counter the damaging scope and fuzziness of the Bill.

View Clause 116 A and B, relating to Orphan Works and Collective Licensing here.
See the entire bill and view progress of the bill on

Sarah Saunders 20 January