Controversial copyright framework receives Royal Assent

The Enterprise and Regulatory Reform Bill, which contains new controversial and wide-ranging copyright propositions that will affect photographers in the UK and abroad, has received Royal Assent

Olivier Laurent — 1 May 2013

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Despite wide opposition from the photographic industry, the Enterprise and Regulatory Reform Bill received Royal Assent on 26 April, enabling the government to introduce, through regulations, controversial copyright reforms.

The bill, which became an act of law last week, was sponsored by Vince Cable and Lord Marland of the Department for Business, Innovation and Skills. The bill was originally written to eradicate unnecessary bureaucracy but presented a series of provisions, introduced through the back door by the Intellectual Property Office, to allow the use of orphan works, such as images that lack metadata and whose copyright owners cannot be found.

While the bill has received Royal Assent, the proposed copyright changes have not yet been approved by the government, as the Intellectual Property Office is still consulting the industry on the changes. Yet, once finalised, the government will be able to introduce the controversial regulations, which will face minimal legislative oversight – a committee of MPs can approve or reject the regulations but cannot amend them.

If introduced and approved, these regulations would have seismic repercussions for photographers both in the UK and the rest of the world. “The invention of photography and its mass adoption by the population created a new kind of potential value, but being analogue it was too expensive for corporations to exploit en masse the many millions of photographs they made,” comments Paul Ellis of the Stop43 campaign group. “Digital changed all that. Intellectual Property is the oil of the 20th century, and the almost cost-free duplication and dissemination of digital files has resulted in a huge stream of images. The trouble is, it was illegal to exploit them without the owners’ permission. That’s no longer the case.”

Earlier this year, 73 organisations and individuals – including Thomson Reuters, British Pathé, Press Association, Getty Images, Associated Press, Corbis, Magnum Photos, Mary Evans Picture Library, the Association of Photographers, the British Association of Picture Libraries and Agencies, the Art Archive, Nature Picture Library, ITN, Stop43, Image Source, the Royal Photographic Society and many others – warned that the introduction of orphan works provisions and extended collective licensing would serve to reduce the incomes of creators and performers.

“Those hardest hit will be those who typically trade as individuals: photographers, illustrators and performers. These are all creators whose work is especially easy to ‘orphan’ as theirs is often incorporated into the work of others, such as websites, newspapers, periodicals, books, films, music recordings and broadcasts.”

They also warned that the “existence of extended licensing schemes will mean there will be a de facto ‘standard rate’ set by those schemes for the use of particular types of work, and it will be more difficult for individuals to negotiate higher rates where the quality and nature of their work justifies it”.

While publishers seeking to use an orphan work will have to demonstrate they have done a reasonable search for the image’s owner, a large number of online services, such as Facebook, Twitter and Flickr, strip the metadata from uploaded images, creating millions of new orphan works each day.

“What does this mean for the general public? They’re stuffed,” Ellis tells BJP in an email conversation. “In the way of things, their huge mass of unremarkable images throw up lottery winners that make it onto the front pages of newspapers and news websites, and generate huge value for media organisations. The difference is that lottery winners usually get the winnings. Now owners of lottery-winning images usually won’t.”

Professional photographers, however, could benefit from the Copyright Hub’s upcoming launch. “The Hub promises free or low-cost registration of works to stop them being declared orphan, but registry facilities barely exist yet, and even when they do, for producers of large numbers of relatively low-value works such as photographs, the time and costs of registration are likely to remain significant for some time to come,” says Ellis.

Most UK photography organisations have yet to officially comment on the bill’s passage. But, on 01 May, the Royal Photographic Society issued a statement calling for the goverment to engage in “constructive negotiations” before introducing the statutory instruments that will allow for the licensing of orphan works.

“The Society, along with other members of the photographic industry and BCC, has been invited to a meeting with Viscount Younger on 10 June and it will reiterate the need to protect the rights of photographers to exploit their work for their own benefit if they wish to do so,” reads the statement. “The Society hopes that the government will engage in constructive negotiations with the creative industries to address these concerns before statutory instruments are laid before parliament. It will also seek to establish whether the Intellectual Property Office’s notices continue to be supported by government.”

It adds: “The Society notes that the Act does not remove copyright from works. It is also mindful of the potential benefit to the United Kingdom economy and institutions through the exploitation of orphan works. It wishes to ensure that all photographers – amateur or professional – are not encumbered by the need to devote significant time and resources to protect their work from exploitation by others when they could be creating new work.”

Photographers have already looked for alternatives to protect their images. John D McHugh, for example, launched an iPhone and iPad app called Marksta, enabling photographers to add IPTC metadata and watermarks to images shot on the mobile devices.