New IP rules ‘invert normal operation of copyright’

By Alastair Reid

In what has been termed the ‘Instagram Act’, the coalition government’s Enterprise and Regulatory Reform Bill has been accused of limiting the rights of copyright holders – from photographers and artists to writers and musicians – laid out in the Berne convention on copyright.

The bill, which received Royal Assent last week, will allow orphan works to be licensed for commercial use and bring in extended collective licensing, meaning publishers can license images from a collecting society even if the copyright owner is not a member of the collecting society itself.

“The Enterprise and Regulatory Reform Bill inverts the normal operation of copyright,” Paul Ellis, professional photographer and founder of the Stop43 campaign to halt the bill, told

“Both of these [terms] invert the normal operation of copyright as expressed in Berne [convention on copyright] and they say that other people can use your work without your knowledge or your permission or payment to you.”

Orphan works, defined as a copyrighted piece of work for which the owner cannot be contacted, may be published commercially after a publisher undergoes a “diligent search” for the author. If the author is not contactable, publishers would have to get a licence to use the work from the Copyright Tribunal and pay a fee accordingly, said Ellis.

In the online world an image’s metadata is central in determining its origin, but a study published in March by the International Press Telecommunications Council into the use of images by social media websites, reported on a test which found images with embedded metadata uploaded to sites such as Flickr, Twitter and Facebook appeared to lose this metadata when downloaded again from those sites.

“Hundreds of millions of photographs are stripped of their metadata everyday by social media,” Andrew Wiard, professional photographer and board member of the British Press Photographer’s Association (BPPA), told, “and one of the main consequences of stripping away metadata is that these pictures are very difficult to use to trace the owner and their contact details”.

If an image or work is moved or removed from its origin in the digital space, says Wiard, the ability to identify the author drops dramatically.

“They [publishers] will be in no position to find out who the author is and will use it without the author’s permission, which might even be damaging if it is used in a way that the author believes to be unacceptable as well as stealing their possible income from sale of the picture.”

Despite the impact of social media on orphan works, Ellis believes this clause will be secondary to extended collective licensing in terms of the impact on author’s ability to profit from their work.

“An extended collective licence allows the collecting society to license work that belongs to non-members,” he said. “In other words to individuals who perhaps don’t even know that the society exists, are not members, have not given that collecting society permission to license their work and, because there’s no relationship between such people and the collecting society, the collection society doesn’t know who to pay so the money doesn’t go back to the owner either.”

The proposals have been met with strong opposition.

In January, 73 organisations and individuals from the UK photography establishment co-signed a letter opposing the bill, an international media and archive consortium has threatened the coalition government with a judicial review, and renowned photographer David Bailey, revered as one of Britain’s greatest-ever photographers, wrote an open letter to George Osborne condemning the plans.

Tim Faircliff, interim managing director of the Association of Online Publishers, told “Websites and other digital properties created by UK publishers are rich in audiovisual material and are currently afforded copyright protection.

“What worries me is that this is the thin end of the wedge and government has allowed companies to legally scrape websites and make money by stripping material from these sites. They don’t have to pay the originator a penny and it’s a serious realignment of copyright law to the detriment of content creators.”

In addition, both Ellis and Wiard said the proposals contravene the Berne convention, the international agreement underpinning copyright law in its 165 signatory countries.

“[The Berne convention] states very clearly that you cannot allow copyright works to be used in a way which detracts from the copyright owner’s ability to earn a living,” said Wiard. “That’s essentially the point. If you subscribe to the Berne convention you do not pass domestic legislation which limits the rights of copyright owners to profit from the work that they create.

“There can be no clearer example of limiting the rights of copyright holders to profit from the work that they create than commercial use of orphan works.”

Ellis explained that under article 5 of the Berne convention, authors receive copyright protection without the formality, for example, of having to register their work with an agency or collective society and that article 9 of Berne grants authors the exclusive right to authorise the copying of their work.

“Take these together and if you’re an author, creator, photographer, songwriter, whatever, and you create something, it is, straight away, yours by default. You have the exclusive right to say who uses it: why, how and when,” he said.

“Photographers, writers, musicians will find their work being commercially exploited by other people without their knowledge, without their permission and without payment to them. This is in direct breach of the Berne convention.”

The proposals, which will be fine-tuned into specific regulations by the government over the coming months, are intended to boost economic growth in the technology sector, although government forecasts have been substantially reduced since legislation began, said Ellis.

A 2012 government report, titled Modernising copyright: A modern robust and flexible framework, estimated the potential economic benefits to be worth £500 million over 10 years, “with likely additional benefits of around £290 million each year”.

“This is absurd,” said Ellis. “The whole idea is that it’s meant to be about growth in the UK economy but the government’s own amended figures amount to about 80 pence per taxpayer, per year. That’s less than the price of a single song download.”

In a statement an Intellectual Property Office (IPO) spokesperson said: “The powers in the Enterprise and Regulatory Reform Act 2013 aim to make copyright licensing more efficient.”

“They are intended to help remove unnecessary barriers to the legitimate use of works while preserving the interests of rights holders.

“Owners of photographs posted online will not lose control of their copyright under changes outlined in the Act. Nor do the changes mean anyone can use a copyright work without permission or free of charge.

“If someone copies a photo posted online they still need the permission from the rights holder of the photo to do so. If they don’t have this permission they will have to apply for and buy an orphan works licence.”

The spokesperson added that “the new law simply means that if, following a diligent search, you genuinely can’t find the copyright owner of a photo and can demonstrate this to the Government-appointed independent body, you may be able to buy a licence to use that photo”.

“The licence fee is then kept in case the copyright owner is found and this will be at a rate that is equivalent to the use of a photo by a known photographer.”

And where licences are provided for orphan works certain conditions will be applied.

“These conditions could include on how long it can be used for and restrictions on changes that the copyright owner might think derogatory.”

The IPO is currently working on developing the proposals “in consultation with key stakeholders, including those representing the interests of photographers”.

Update: This article was updated to clarify in the fourth paragraph that publishers would have to get a licence to use the work from the Copyright Tribunal when the content creator is not contactable.

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