Most people in the photographic creative industries now know that the contentious part of the Digital Economy Bill was thrown out on April 7 as the bill passed through the commons as part of the ‘wash up’ before the UK general election on 6 May.
The progress of this particular piece of legislation holds lessons for the future. It is good that circumstances, and a strong campaign, caused clause 43 to fall at the eleventh hour. It gives creators and their representative associations time to regroup for what will probably be an extended battle ahead. So lets look at what happened.
For some years the museums have been lobbying for changes in the law to enable them to use the vast numbers of images in their archives for which there is no accreditation. Leaving aside the fact that for many of these items sloppy library procedures will have led to this situation in the first place, we all agree that it would be a good thing for public, educational and non-commercial use of these images to be enabled. It has been raised time and again, as the US tried, and failed, in 2006 and 2008, to force Orphan Works Legislation into law. The obvious solution, creators said, would be to restrict the use of Orphans, under properly controlled conditions, to the non-commercial sphere.
Why is this important? Because, with images circulating in digital form, the digital label can easily come unstuck. The credit and copyright information in the metadata in the image file is still routinely stripped by software, especially when images are placed on the web. So all our images are potential orphans.
The IPO conducted a series of consultations with people working in a number of creative fields, to assess views on the operation of copyright in the digital age. Should copyright operate any differently, we were asked, in a world where digital copies can be easily made and distributed, and where there is an increasing call for resources on the web to be free? Anyone with teenage children will know (if you dare to ask) that it is normal for them to download music for free from the internet. There is a similar problem for the imaging industry, although its licensing systems are quite different from those of other industries.
The view from creators in the visual industries was that the copyright law itself is sound, it is copyright protection mechanisms that need to be improved, and critically, that education about copyright needs resources and attention.
Last December, just before Christmas, we were faced with the first drafting of the Digital Economy Bill, and alarm bells began to ring. Who were the IPO listening to when they drafted a badly formulated and uninformed bill, which swept all creative industries into the same pot? The bill not only introduced provision for Orphan Works licensing, which would be carried out by as yet unspecified organisations approved by the government, it also included a Extended Licensing clause allowing licensing of all works by similarly unspecified organisations. To top it all there were sections of the bill which would allow changes to be made to copyright law without returning to Parliament, to enable the better operation of licensing and commerce. This was a bombshell indeed. Whose interests were represented here?
We were faced with a situation where collecting societies could take control of image licensing without the copyright owner’s knowledge or consent, and where all photographic works could similarly be swept into an ‘ orphaned works’ category and licensed elsewhere.
The problem was the legislation was vague, so people lobbying on behalf of the industry found themselves involved in fiddling with amendments , which while ameliorating the effects of the bill, did not address the central issue, which is the question of who controls the licensing and use of images. Until now, copyright law has given creators this control as a right.
Other industries, the argument might go, rely heavily on collective licensing to collect revenues for their creators. If the music industry does it why should not the photographic industry work in the same way?
The answer to this has been illustrated, in visual form, by the Stop43 Campaign which was created by Editorial Photographers UK in the early months of this year, specifically to stop the clauses on Orphan Works and Extended Licensing. The campaign circulated images which demonstrated what could happen in the brave new world of extended collective licensing. The image of your favourite horse could be used on a can of horse meat, for example. An image of a child could be used in any number of ways, without proper release. How would you feel if an image of your baby was used for an advertising campaign? Extreme examples, yes, but no amount of fiddling with provision will prevent use of images which will harm not just the photographers, but also the subjects of the photograph, if licensing ends up in the wrong hands. It happens now, but how much worse if creators lost control of their work.
The fact is that many photographs have layers of rights protecting not just the photographer, but also rightsholders of works shown in the image, models, trademarks and sometimes buildings. This is where permissions become critical, often for moral as well as for business reasons.
It was pointed out during the campaign that while there are categories of images (current affairs and staff photographers) where there is no right to a credit under current copyright law, it is absurd to contemplate legislation which makes it easier to use these works without reference to the copyright holder.
We know that images in UK publications are often not credited, and that publishers (particularly newspapers) have habitually used images without permission, leaving hard pressed agencies and photographers to spend time and money reviewing publications on a daily basis so they can ask for payment. This is not a climate where we can contemplate the mass orphaning of our works.
Protest against the bill gathered pace in March this year, and many associations aligned behind the Stop 43 Campaign in the later stages. Letters were written to MP’s and in the event the Labour party withdrew the contentious Clause 43, so that it could get all party support for the rest of the bill.
There is broad agreement across the associations representing photographers and their agents (AOP, BAPLA, NUJ, EPUK, RPS, BIPP) that moral rights of the photographer need to be protected in law. They agree that orphan works legislation should be restricted to non-commercial use of images, that licensing of these images need to be carefully controlled, and that metadata should be protected to avoid images becoming orphans in the first place.
Publishers are dead against any increased protection of moral rights, including the right to a credit. The Periodical Publishers Association made a statement last autumn arguing that a right to a credit in law would be unworkable, despite the fact that publishers in other European countries have operated successfully for many years in a legislative situation of much stronger moral rights for creators.
The publishers are a powerful lobbying group. It appears that the government’s ear is selective, and that the photographic industry needs a strong and clear campaign to prevent legislation destroying the basis of our industry.
In the months of debate about the bill differences emerged between creators’ organisations about extended licensing, and whether it should be legislated for, in any form. How much the campaign is about tinkering with legislation that is bound to go through, and how much is about the ability to control events on behalf the image industry, will become an issue the next time round as well. The pressure for Orphan Works legislation will not disappear.
Now there is time to learn from the events of the last months, more more people need to take part in discussions. The photo industry has been evolving and changing for many years to make licensing more streamlined. If the industry wants to prevent the government from taking a controlling hand in how this licensing is conducted, discussion about technological solutions, and the limits of legislative involvement will need to be widely debated.
Sarah Saunders April 2010