Photographers and their representative organisations have labelled the removal of the controversial Clause 43 from the Digital Economy Bill as a "splendid victory", despite divisions stemming from an open letter published two weeks ago by some of the photographic industry's leading organisations.
In the late hours of 07 April, the House of Commons agreed to pass the Digital Economy Bill in its wash-up process without its controversial Clause 43. The Clause would have given the Secretary of State the power to grant authorisation to a third-party organisation to license specific orphan works.
An orphan work is a creative work whose author cannot be identified or found. The Digital Economy Bill, introduced to the House of Lords last November, would have allowed, among other things, organisations such as the British Library to use and exhibit millions of orphan art works it possesses in its archives. However, photographers argued, it would also have given a blank cheque to commercial entities to use orphan works for a minimal fee and without the author's consent.
Up until the Bill's second reading in the House of Commons, organisations such as the British Association of Picture Libraries and Agencies, the National Union of Journalists and the Association of Photographers were preparing themselves for post-elections negotiations with the government and the Intellectual Property Office to influence the drafting of any regulation issued by the Secretary of State under the powers Clause 43 would have given him.
However, in a late turnaround, and after firm opposition from the Conservative party during the second reading stage, Ben Bradshaw, the government's Secretary of State for Culture, Media and Sport, introduced an amendment removing Clause 43 from the final bill. The amendment passed.
An unworkable clause
"Clause 43 as written, was unacceptable and totally unworkable in practical terms," says Kingsley Marten, managing director of the AoP. "In addition, no mention has been made of photographers' moral rights as conferred under the CDPA 1988, which we would like to see become inalienable, in a similar way to that which Germany has adopted."
He adds: "If it had been introduced, the clause would have caused many more problems than it tried to solve and extensive work would have been required first, to find a mechanism that would have allowed to actually become operable. The problem with those that drafted the clause, was that they only saw one end of the spectrum - large libraries with millions images that they cannot use, as they don't know how owns the copyright - the other end of the spectrum is the work of photographers today, that may become orphaned if the metadata is striped out, when a copy of the image is made."
The NUJ is also delighted that "Clause 43 has been removed from the Bill," says freelance organiser John Toner. "It was clearly hastily conceived and tagged on to a piece of legislation that was designed to deal with other issues. We hope now that any proposals for legislation will include consultation with creators organisations from the start."
Andrew Wiard, a freelance photographer, adds: "Thank God it's gone, with the help of opposition parties for which we are deeply grateful. The Tories have promised a proper Intellectual Property Bill, which is what we should have had in the first place, straight after Gowers. That would give us the chance to deal intelligently with orphans, and also to introduce the rights denied us by Gowers, starting with the right to have our names on all our pictures."
Wiard's assessment is shared, with Rupert Grey, a media law expert with Swan Turton, calling for a broad rethink of copyright. "What the Tories have done is buy time for a comprehensive appraisal of the role of copyright in the distribution of images," he tells BJP. "The government needs to understand that there is a radical difference between the licensing of music and the licensing of images, which Clause 43 ignored. We also need to look at the role of images, the extent to which it is possible - or right - that creators should retain control over use on the Internet; should we - is it possible? - create a distinction between images that are routinely distributed on the Internet and those that have a value enhanced by skill or rarity? Would a registration system work better now than a century ago, when it was last tried? How do we deal with 3rd party rights - privacy and image rights? Is the right to a credit now more valuable than copyright?"
He adds: "The architecture of copyright needs adjustment. Gowers made a good start but the issues are wider than he was able to address. Photography has come of age as a central part of the cultural heritage of the UK and Europe. The industry should apply its collective mind to these issues independently of corporate and institutional lobbyists. A broad vision is called for, with an eye on maintaining a fair balance between control, protection and exploitation. Now is the perfect time to do it."
Negotiations and campaigns
The government's turnaround came after five months of meetings and negotiations between different representative organisations and the IPO, but also thanks to a high-profile five-week campaign launched by independent photographers under the Stop43 moniker.
In the four months during which the House of Lords debated the Digital Economy Bill, the Association of Photographers, the British Association of Picture Libraries and Agencies, the National Union of Journalists and other organisations met with the Intellectual Property Office to communicate their concerns and try to influence the final legislation.
During these negotiations, the IPO made several concessions on Clause 43, as outlined in a letter co-signed by the organisations representing photographers, as well as Getty Images. The letter, published on 25 March, reads: "We welcome the extensive debate on many aspects of the Digital Economy Bill that took place in the House of Lords. In particular on the question of Orphan Works, we believe the Government's concessions on Clause 43 have considerably improved the legislation. We have been encouraged by the progress made on sanctions and penalties for deliberate or negligent misidentification, or for failing to comply with authorisation. We are pleased that Orphan Works have been defined more clearly on the face of the Bill. We also welcome the fact that the Government stated at Report Stage that if they find through the forthcoming consultation that certain types of works such as contemporary photography cannot be included in the Extended Collective Licensing framework without causing harm to rights holders, there will be flexibility to exclude them."
Despite this, as the organisations added in their open letter to the government, "content creators, rights holders and the imaging industry continue to have concerns about the practical implementation of the Bill's intentions."
The unified front, which also encompassed the Design and Artists Copyright Society, the Royal Photographic Society, as well as the British Institute of Professional Photographers - which joined only after the letter was published -, listed several issues with the Digital Economy Bill such as its lack of mention of moral rights before pledging to "ensure that these concerns will be represented throughout the remaining passage of the Bill, and in the drafting of future regulations."
Taking matters into their own hands
The letter was published on 25 March, three weeks after independent photographers launched the Stop43 campaign, out of frustration over the perceived inaction of their representative organisations. "We felt they were slowly allowing us to be pushed off the cliff," says Paul Ellis who helped organise photographers around Stop43. "We had to try to fight back and take the matter into our own hands, as we felt that their interests were working against our interests as photographers."
He adds: "Stop43 was run on a month's unpaid full-time voluntary work from a handful of people, and the generosity of those photographers and retouchers who made their copyright work and skills available to us to produce the 'virals'," says Paul Ellis, who helped organise the campaign. "It also ran on the pent-up energy and frustration of thousands of photographers who previously had lacked a specific focus. Stop43 gave them the arguments to use and the tools with which to use them."
With the campaign's initial success came endorsements from some organisations such as the AoP, the British Press Photographers Association and Pro-Imaging. The NUJ joined later on, while BAPLA did not support the campaign. However, despite their support, few organisations called on their members to join the campaign.
Pete Jenkins, another freelance photographer, tells BJP that "many of our organisations told us we couldn't do it, told us that 'Stop 43' would make not a slight bit of difference. But it was some very sustained hard work by a small number of determined photographer activists, and some intense back-up work contacting MPs and members of the Lords by hundreds of professional photographers that managed to tell the story and persuade parliament to lose this badly thought out clause."
However, faced with mounting criticism from photographers that say their representative organisations failed to take a strong stance against Clause 43, the people who signed the "conciliatory" letter have moved to justify themselves.
"The AoP's view on Clause 43 has always been first and foremost that it should be totally removed from the Digital Economy Bill and that separate Primary Legislation be drawn up and introduced to deal with the complex issue of Orphan Works," says Marten. "However, [had clause 43 stayed in the final legislation], we, like other like-minded organisations [the NUJ, RPS, DACS, Getty] believed that our joint and unified concerns regarding the clause itself, needed to be understood clearly, before the legislation was passed, as people needed to know what was wrong with it, before they voted for it."
Alison Crombie, a vice-president with Getty Images, which drafted the first version of the letter before BAPLA took over that role, agrees. "We collaborated closely with BAPLA on this issue, who led a united front to address the issues and concerns that both agencies and photographers had around this Bill. As the Bill passed through different stages, it was clear that both the Bill and Clause 43 stood a very good chance of getting passed and as such, we looked at the different scenarios that could come into play should the Bill get passed."
She adds: "The ultimate goal that we and a number of industry organizations and players had front of mind was to ensure that there would be a copyright framework that would be fair and would protect photographers and right's holders content."
Simon Cliffe, who drafted the final version of the letter, continues: "Under BAPLA's initiative, associations from the photography industry came together and agreed on what was wrong with Clause 43, and our goal was to present government with a well organised message from a number of groups to secure the right legislation if it was passed - whilst still enabling us to individually continue our lobbying in the build up to this week. The tone and the content of the statement was agreed and written by all who signed, and BAPLA is committed to continue working with those co-signatories and others who join as we look for a copyright framework that is fair and properly protects photographers and right's holders."
But, says Wiard, the letter they signed was unacceptable. "Neither Stop 43, nor EPUK, nor the BPPA signed that letter because the offending [first] paragraph sounded like the white flag of surrender. And that is what in fact the government front bench then quoted and waved at the height of the parliamentary debate."
On 06 April, during the bill's second reading, a member of Parliament quoted the letter arguing that its signatories were in support of Clause 43 - which Marten from the AoP quickly objected to.
Wiard adds: "It was only by making clear to the world that what most of its signatories were really saying was 'Stop43' that we managed to carry the day. Despite furious lobbying by key figures trying to stick Clause 43 back into the bill. They failed. Miserably."
BJP understands that a small numbers of members have left BAPLA over the letter. The AoP has also received a few letters of discontent from members,
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