Photographers are set for another debate on Orphan Works as the British Copyright Council is consulting with its members on proposals to address the issue, BJP has been told. The draft, which has yet to be officially released but was published on The Russian Photo Blog, is now being discussed among members of the British Photographic Council.

Represented on the British Photographic Council are the Association of Photographers, British Association of Picture Libraries and Agencies, British Institute of Professional Photographers, British Press Photographers Association, Bureau of Freelance Photographers, Chartered Institute of Journalists, Editorial Photographers UK, Master Photographers Association, National Association of Press Agencies, National Union of Journalists, Pro-Imaging, Redeye, and The Royal Photographic Society.

BJP understands that the draft proposal was discussed at a 15 November meeting of the British Photographic Council, but that a decision has yet to be reached. The draft proposal, which can be downloaded here, mirrors that of Clause 43 of the Digital Economy Bill unveiled earlier this year. Clause 43 was removed from the final Bill after opposition from photographers and members of the opposition in the House of Commons.

The British Copyright Council's draft proposal reads: "Following an unsuccessful diligent search for the right holder, the use of an orphan work will be enabled through a system based on collective licensing, in ways which consider the interests of creators, right holders and users, whilst complementing the licensing options within the existing system."

It adds: "A mechanism to enable the legitimate use by licensing orphan works could easily be achieved by building upon existing sections of the Copyright Designs and Patents Act 1988 (in particular sections 143 and 144A and 190 CDPA 1988). This would provide a simple mechanism for obtaining the necessary licences in return for fees or royalties in line with current industry practice and based on long established infrastructures in the creative industries."

Such licensing would be managed by a collecting society relevant to the orphan works - for example, the Design and Artists Copyright Society could license images that are found to be orphan works. However, the British Copyright Council adds, in cases where "no collective management licensing body holds a mandate for the genre or type of work relevant to the work identified as orphan," the licence "would be granted by the Copyright Tribunal."

It adds that "should the owner of the orphan work not claim the fee or royalty within three years of the licence being granted, the money could be used to support creative and/or charitable causes in accordance with distribution rules approved by the membership of the collecting society in question (and recognised at the time when an orphan works licensing scheme is certified)."

In a conversation with BJP, Janet Ibbotson, chief executive of the British Copyright Council, says that the goal of the draft proposal is to pre-empt the European Commission's proposed Directive on Orphan Works, which is expected to be released before the end of the year. The Directive will look at facilitating digitisation and dissemination of cultural works in Europe.

While most members of the British Copyright Council have agreed to the draft proposal, the photographic community has until December to express their views. BJP understands that members of the British Photographic Council have been invited to a 02 December working group meeting with the British Copyright Council to discuss their options.

"As the photographic issue is a particularly complex one, we felt it was fair to invite member organisations of the BCC representing photographers to attend that meeting," says Ibbotson. "We hope they will present an agreed solution but, I emphasise, it is for the photographers' organisations to decide on this point, it is not for the BCC."

According to the British Copyright Council, the photographic community has two options: to ask to be excluded from the proposal, which will mean that all changes proposed would not affect images and photographic work; or to see photography included in the proposal but with its own terms and conditions.

Once the proposal is agreed, the British Copyright Council will consider submitting it to the Intellectual Property Office or the government in upcoming consultations on the future of Intellectual Property rights.

"Clearly the BCC would prefer a solution which includes all works and right holders, so there is no intention to deliberately exclude photographs," Ibbotson tells BJP. "However, we recognise the concerns of the photographic community and are prepared to accept an exclusion if that is what they want. Most of our members want to move ahead swiftly and to have a consensus view on a right holder led solution ready for the next round of consultations/draft legislation, either UK or European, which will involve orphan works and which we expect at any time."

UPDATE - 23 NOVEMBER - 2pm: "There is no unanimity within the British Photographic Council about how to proceed with the BCC draft," says a source close to the BPC. "However, there is an overwhelming agreement that the draft should be focussing on moral rights and prevention of the creation of orphan works in the first place. The British Copyright Council is attacking the problem the wrong way."

UPDATE - 24 NOVEMBER - 2.30pm: Speaking to BJP, John Toner, freelance organiser for the National Union of Journalist and a representative of the British Photographic Council, says that within the BPC "there is no enthusiasm for the BCC’s proposal as it stands, and we are seeking to add some conditions to it.

Toner adds: "The most important of these is that we wish to see major improvements in moral rights as a precondition for any legislation on orphan works. Moral rights legislation in the UK is notoriously weak, and we consider it an absurdity that orphan works legislation is being proposed without such an improvement. Unless authors’ rights to accreditation are strengthened the number of orphan works will continue to grow."

BJP understands that the British Photographic Council wishes to try to influence the BCC proposal before discussing other options.

Check back for further updates...