The advice comes as Professor Ian Hargreaves published on 18 May his "review of intellectual property and growth", addressing the issue of copyright law and its limitations in the digital age.
Among its recommendations, Hargreaves calls on the government to "legislate to enable licensing of orphan works. This should establish extended collective licensing for mass licensing or orphan works, and a clearance procedure for use of individual works."
An Orphan Work can be a photograph, as well as any other creative work, from which the creator's identity has become separated and untraceable. It can also refer to a work that has gone out of copyright.
While Hargreaves' recommendations would allow for the licensing of such works, photographers have long argued that the government should also legislate to prevent the creation of orphan works in the first place. For example, many images published online are stripped of their metadata by publishers' systems - creating, in effect, additional orphan works.
In his recommendations, Hargreaves acknowledges that fact. "We note that the submission from photographers' representatives Stop 43 puts forward a strong case for the benefits of a digital metadata registry in preventing works from being unjustly orphaned, and, where they have been, for restoring rights information."
However, with Hargreaves refusing to propose a strenghtening of moral rights, it remains unclear how the government will prevent the creation of new orphan works.
The Stop 43 campaign group was launched in early 2010 to influence MPs into dropping Clause 43 of the Digital Economy Bill. The campaign was successful after it received backing from the Conservative Party, in opposition at the time.
Now, the photographers behind Stop 43 are gearing up for another battle of "epic proportions," they tell BJP. At the centre of Hargreaves' proposal lie the Digital Copyright Exchange - a massive clearing system to allow organisations and companies to license digital works while, in practice, protecting creators' rights.
The exchange, says Hargreaves, would benefit creators by providing "improved routes to market [...], a means to record unmistakeably the ownership of rights [...], clearer understanding of licensing terms and conditions [...], and a defence against rogue 'orphaning' of works through digital fingerprinting."
For publishers, the exchange would be "a place where those seeking to use copyright works can quickly identify the rights holder and secure a licence, either through automation or via a negotiating agent." Another benefit, the exchange would offer is "more choice, better services and lower prices for consumers from a more open and and contestable market further up the supply chain."
The concept of the Digital Copyright Exchange is very similar to that of the Natural Cultural Archive, as proposed by Stop 43. However, the campaign group warns that "the devil will be in the details," as many questions remain unanswered. "Is it to be entirely free to submit to and to use? Will submissions be automatic, compulsory for publishers and voluntary for creators? Will it efficiently allow creators, rights-holders and users to negotiate usage fees in the normal way?"
However, more worrying, says Paul Ellis of Stop 43, is the fact that the Digital Copyright Exchange will be used to commercialise potential orphan works at low rates. "There is not even any attempt to charge a 'market rate'," warns the group. "Orphan works are to be licensed for a nominal fee."
Moreover, while professional photographers will be expected to submit their work to the exchange, amateurs are unlikely to do so, leading to the potential "commoditisation of everything that's not in the Digital Copyright Exchange," says Ellis. In short, Images shot by amateur photographers could automatically become orphan works and be available for use for "a nominal fee." "This would be a huge win for the BBC and Big Culture, but not for the creators," says Ellis.
The British Photographic Council, which brings together some of the UK's photographic representative organisations, has also expressed "serious concerns about the proposal to allow extended collective licensing of orphan works," says John Toner, of the National Union of Journalists, in a prepared statement. "Indeed, we fear it might not be limited to orphan works. It is of paramount importance to photographers that they retain the right to decide where and when their work is used."
The council adds that "any use of orphan works should be for non-commercial purposes [only]."
But, it adds, "what disappoints us most is the complete refusal by the Review team to address the issue of the very weak framework of moral rights within this country. Creators should have an unwaivable right to be identified as author of their works and to defend their integrity." Toner adds: "There is an absurdity in proposing a system for the licensing of works whose authors cannot be identified without introducing an enforceable right to be identified. Without such a right, works will continue to be orphaned."
BJP will continue to review the impact of the Hargreaves report in coming days and weeks. Stay tuned.
This article was first published on 18 May at 11am. It was updated on Thursday 19 May at 5.30pm.
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