Debates around the Digital Economy Bill

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

Stop 43

Creators Rights Alliance

Digital Economy Bill - 43 falls!

Yes! The campaign was successful - for now. There has been acceptance by some on all sides of the house that it is lunacy to push through legislation of this kind without due thought for the consequences. The voice of photographers has been heard, even if only in a limited way. That is something we can build on.

What will happen next is for the future, once the election furore has died down. It is not the time for complacency. Remember the reassurances from the IPO, and from some of our associations. All would be well, we were told, our interests would be taken care of. What the throwing out of 43 has highlighted is that we cannot accept deals done behind closed doors. If that's the way politics works, it needs to be challenged. Solutions to the orphan works problem, which needs to be addressed, should be aired and discussed in detail. New image licensing systems need to be scrutinised by everybody, and we need to be wary of any attempts to take control of copyrighted works away from copyright holders.

Opposition to the bill has brought people out of the woodwork. Alliances have been formed, and the issues have been highlighted. I am confident that those who care will regroup to discuss the way forward so that never again are we caught out as we were last autumn, with lobbyists and the government operating in secret, with labrinthine pathways to the future built into an obscure and badly thought out bill.

Frankly now I will be turning my thoughts to the environment and the economy and to the moral compass that seems to be missing. Will any of the parties take up the challenge of new thinking? I don't think so, but now's the time to push them for answers.

In the meantime, let's not forget to work for a workable future in our creative imaging industry.

Digital Economy Bill - Letter to my MP

Here is what I have written to my MP.

"The main areas of concern are that the right of the creator of an artistic work to determine where and how that work should be used has been removed under what is now Clause 43 of the bill.

In our industry we have been aware for some time of the need to free up works currently held in museums and other public bodies. We believe it is right that the public should have access to images for non commercial use under a sound arrangement for handling the ‘orphaned’ works.

But we are also aware that many images currently in circulation, which form the livelihood of photographers and their agencies, may also be scooped into the category ‘orphan’. I am a specialist in metadata – the data which accompanies an image – and I know that it is only in the past couple of years that photographers and agencies have acquired the know how and technology to consistently add data to the digital image file so the copyright information is with the image. We are all aware also that many technologies currently strip that data from the image, leaving them orphaned.

There have been many arguments around this matter, but 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. The freeingup of orphaned works should be restricted to non-commercial uses.

Worse still, the bill proposes that all works should be freed up for collective licensing, which means photographers and their agencies would potentially lose control of how any of their images are used. This is supposed to be a balancing act, enabling easier use of images by publishers. But the dangers of this approach are enormous. Not only would the photographers lose the right to control use of their own work, but so would the models (who may be children), and any organisations or companies portrayed in the image. There are many layers of permission in an image – model rights, other layers of copyright, geographical restrictions, use restrictions and so on. To remove control of these rights from photographers and the agencies they contract to licence their works is to open the doors to a free –for-all that could wreck the basis of the image licensing industry.

The image industry woke up many years ago to the need to make licensing easier for legitimate users. The number of different licensing models is evidence that ease of use for image buyers is a driver for change – sometimes to the detriment of the individual creator. But the photographer has the choice of where to place his or her images, and can make that judgement based on the image, the subject matter, permissions, and the wishes of the photographer.

I am well aware that there is a planned ‘opt out’ clause for this legislation, but I would ask the question why this legislation has been proposed in the first place. How would we feel if laws were passed on other subjects where what we thought were our rights were suddenly subject to an opt out clause.

The laws of copyright, hard fought for, are the bedrock of this creative industry. The UK has a world reputation for creativity in photography., we have more specialist photographic agencies than anywhere else in the world, many of them run by committed photographers in specialist knowledge areas. We contribute enormously to the communications industry. New technology is putting many creators and their agencies under enormous pressure, with changes to working practices happening every day. To allow the conditions for sale of our product to be dictated by organisations appointed by the government, whatever their make-up and origin, would be a retrograde step that could squeeze the creativity out of our industry altogether.

As many have remarked, the complexities in the Digital Economy Bill are such that a wash-up would be insulting to the industries involved. There are sweeping powers in the bill which rely on secondary legislation in what seems to be a most undemocratic way. I am asking you to take account of the concerns of the photographic industry, and to prevent this from happening.

I would like to ask you to vote against the bill in its current form. "

Digital Economy Bill - organisations unite

At last, creators' organisations are pulling together. A new site has been created Stop 43. It has a direct approach - lets stop this bill before it wrecks our industry. The site is supported by EPUK, AOP, Copyright Action, Photographers Agents London, and pro-imaging.

The site visually demonstrates what might happen if the bill is passed (your favourite horse image used on a can of horsemeat), and shows you how to write to your MP.

Go there, do it, don't wait.

Digital Economy Bill - what can we do?

How did we find ourselves in this fix? The Digital Economy Bill is shooting through Parliament in what has been described on the CRA (Creators Rights Alliance) web site as ‘an appallingly rushed process.’

The bill introduces legislation to enable the licensing of orphan works by authorised bodies, and Extended Collective Licensing provision which would give collecting societies the right to license other copyrighted works as well. (See my previous blog)

While amendments have specified that copyright holders will have the right to opt out of these arrangements, the fact remains that control of the use of works will be removed from the rightsholder. The ‘balance’ promoted by the IPO will take rights away from creators in favour of the users of the works (the publishing industry.)

Taken together, these provisions amount to wholesale attack on the right of the creator to decide how his or her works are licensed.

Strange. I remember being involved in the pre-bill consultation last year, and the view from creators’ organisations was that there was nothing wrong with copyright law as such. It was the ability to protect those rights that needed to be improved.

To illustrate what we are up against, here is a quote from Lord Lucas on 8 February during debate in the Lords. "We are coming up against what will prove to be impossible over the next decade or two: maintaining the idea that the copyright owner has control rather than a right to remuneration. I do not see how control stands in the internet age.”

Those of us who are creators or their representatives need to ask ourselves whether we agree with this statement. Do we want to give up control over the way our works are licensed? If there are areas where it is beneficial to creators to look at collective licensing, is the Digital Economy Bill as it stands the best way to take a considered view on how licensing may look in the future?

Lord Clement Jones commented on the same day 'It is one thing to have an extended licensing scheme for a body that already has a particular work that it needs to exploit in different formats over time and another to have a completely new work over which it tries to acquire rights through this process.'

The fear is that organisations which have access to works will try to take control of the licensing without recourse to the creators themselves.

On Feb 8 Lord Clement Jones said ‘We know that there will be a problem in the other place, where Members will not have time to debate the issues. We will have what is traditionally called the wash-up at the other end.’

This means legislation will be rushed through in The Commons in advance of a May 6 election, by people who do not know our industry and have no time to think about the issues involved.

Photographic organisations have been mobilising. The IPO held a meeting last Friday to discuss their major concerns. A report of this meeting ‘IPO meeting stalemate’ can be found on Copyrightaction.com, run by EPUK (Editorial Photographers UK) along with their position statement on the bill.

BAPLA has issued a statement which calls for orphan works to be released for non-commercial use only, and for safeguards on moral rights and metadata.

Rights organisations are asking, at the very least, for enforceable moral rights, attribution of works, and protection of metadata. These things are strongly opposed by what the IPO calls other stakeholders - publishers in other words.

The Periodical Publishers Association (the PPA) issued a statement in September last year opposing any change in the law on moral rights. At present moral rights, which include the right to accreditation, have to be 'asserted'. Creators organisations are calling for a default position with automatic moral rights.

The photographic industry is reacting to a bill which drives a cart and horses through the rights of creators in order (it would appear) to appease the publishing industry. Despite recent promises of consultation for the setting up of the orphan works and extended licensing schemes, the process appears to be profoundly opaque and undemocratic.

The Collective Licensing provision is vague. What kind of licensing will be enabled under this provision? Who will decide? Many more questions need to be asked and answered before it is safe to give the go ahead to any such schemes.

With the bill brewing dangerously before Christmas, it was surprising how little reaction was to be found online. In an interview with BJP the AOP tried to reassure photographers that 'We have the ear of the IPO', and statements from other organisations were also vague. Lobbying was going on.

Now things have reached a critical point. The AOP said recently in the BJP ‘We feel everyone should be aware that should the bill pass in its current form any creative work, including photography, is potentially open to political, social, religious or commercial gain by anyone; if the creator of that work cannot be easily identified and traced.' (BJP-online) The AOP views on the best way forward are set out here.

DACs is the collecting society positioned to license photographic works in an Extended Licensing Scheme. Such are the fears, that DACs (BJP online 5 March) has moved to reassure creators that it is not in the business of licensing in rightsholders' primary markets. Creators may well feel that any such reassurances are flimsy in the face of the powers being dished out by the bill in its current form. Perhaps the AOP, which is represented on the board of DACs, can throw more light on this matter.

An election will be called very soon. Even the helpful amendments proposed may not make it onto the statute book. The thought that our industry may be the victim of a ‘wash-up’ should stir us to action.

What can we do?

1) Stay up to date with developments by visiting these sites

AOP
BAPLA
Copyrightaction.com
Creators Rights Alliance

2) Contact your MP before it's too late!

Digital Economy Bill - amendments to be discussed

Work is going on to amend parts of the Digital Economy Bill. Lord Bridgeman and Baroness Buscombe have been active in defining some terms.

Parts of the proposed ammendments are listed below (These are extracts, for full information see the original bill and its amendments in full).

They give more detail on:

• Definition of Orphan Work
• Where burden of proof of Orphan status should reside (the publisher)
• Compensation to copyright holder if found
• What a diligent search entails
• What kind of organisation may become a licensing body
  

30A Orphan works

The Secretary of State may by regulations provide that acts in relation to an orphan work which would otherwise require the consent of the copyright owner may be done notwithstanding the subsistence of copyright.

A work shall become an orphan work when the copyright owner cannot be found.

The burden of proof that the copyright owner cannot be found shall be on the person who publishes the orphan work, and the burden shall be discharged by proof that a diligent search to identify and locate the copyright owner has been undertaken and has not been successful.

The work shall cease to be an orphan work when the identity and location of the copyright owner becomes known.

The copyright owner shall be compensated in an amount equal to the licence fee he would have received had he been identified at the time of publication and he shall be entitled to aggravated damages if the person who publishes the work is unable to discharge the burden of proof described in subsection (3).

Regulations under subsection (1) shall only provide for authorising a licensing body that represents a substantial number of authors or, as appropriate, performers of the type of works for which the licence is to be granted.

The regulations shall provide that no such licence may be granted unless the would-be licensee demonstrates to the licensing body that they have undertaken a diligent search for authors, performers and other holders of rights in each work for which a licence is sought, including the making of detailed enquiries to relevant institutions and rights holders in the same or similar fields.

Regulation under subsection (1) shall only provide for authorising a licensing body that represents a substantial number of authors or, as appropriate, performers of the type of works for which the licence is to be granted.

The amendments are going through the committee stage of the Lords over the next few days.

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 www.parliament.co.uk.


Sarah Saunders 20 January