Not Telling
Posted by The UK's Intellectual Property Office (IPO) has published a pdf that claims to "bust" the myths around this legislation. It seems that in order to use an orphan work, the prospective user will have to obtain a license to do so, and the process involved in doing this will be both complicated and more expensive than going direct to the owner in the first place. Full details are on the IPO's site:
http://www.ipo.gov.u...-orphanmyth.pdf
The IPO are beyond useless. The IPO is staffed by career civil servants with career plans, pensions, paid sick and paid holidays. They will lose precisely nothing if the changes go ahead, and have a skid mark across their career if it fails...there is a vested interest in seeing everyone agree with their thinking. But they have consistently ignored photographer's concerns and this is just the latest attempt to placate the masses.
From Stop43 page, a considered view from the creators of the images the IPO consider fair game:-
The IPO says..
"There have been several reports and commentaries in the media incorrectly claiming that new Orphan Works provisions in the ERR Act will remove the automatic right to copyright for owners of photos posted online."
"In fact:"
"1. The powers will not remove copyright for photographs or any other works subject to copyright.
2. They will not allow anyone to use a copyright work without permission and free of charge."
... To correct the IPO... Except in a very few narrowly defined exceptions, Photographers work is currently AUTOMATICALLY protected under copyright legalisation and agreed by international statue. However, this Act will mean that unattributable works can now be supposedly exploited to benefit the economy, in a state sponsored scheme that could see them redistributed and used, without the author's permission or ability to negotiate their own payment with the user, or consideration of the author's moral rights (e.g. the right to withdraw permission for usage). These are rights which are currently protected under copyright.
... When the IPO refer to "permission", it is not the creator's or rights holder's "permission" they are referring to. Permissions currently protected in the Berne convention as 'the exclusive right of authorizing the reproduction of [their] works, in any manner or form' The "permission" they are referring to is that given by someone, or a body, as yet unknown and undefined unconnected with the author or rights holder. What qualification do they have to grant such permissions? Who's interests are they acting in? How will they judge the rate to be charged? What gives them the right to skew the free market in their or other's interest? No one knows. However, on the basis that the IPO and HMG have ignored every recommendation made to them by photographer's organisations during the consultation process, we have no faith they will be acting in our interests.
"A licence will be needed to use a work as an "orphan". This requires an applicant to undertake a diligent search for the copyright holder, which the Government appointed independent authorising body will have to verify, and then pay a fair price for the licence."
... No workable system of a diligent search has ever been tested and shown to work, let alone accepted any creators. The attempt at a definition recently made by the EU falls woefully short. Yet such a search is the cornerstone of this new Act. Without it the system fails, because a "diligent search" is what defines an Orphan, and it is the failure of that search which then classifies an image (or other work) as an Orphan. It is therefore in the interests of this scheme, and any would be exploiters, to design a search system that fails. Otherwise there would be no point in this legislation! Alternatively if we adopted the Canadian methodology where a board makes the decision, then there would only be a handful of licences granted per year . That won't happen because the promised economic gains of the scheme would be reduced to all but zero, having already been cut by 97% (!) from Hargreave's ludicrous assertions.
... And of course we have already covered the issue of "fair price"! Who's decides what is fair? The buyer or the seller? Certainly such a system would never be expected to consider that any value could be attributed to the authorship. By definition it can't! A "Gursky" photo sells for millions, but an "orphaned Gursky" would have no value worthy of the creator. So what happens when an image is de-ophaned? If Bailey found an orphaned image of his being used under this scheme, would he be able to negotiate his normal rate? No.
"The Act itself contains a number of protections for photographers and other creators, described in the document below. In addition, the detailed rules are being developed with representatives of the photography sectors and other stakeholders. You will also have the opportunity to have your say on the draft Rules in a public consultation."
... We have been told many times that we will have our say over the past year. We and nearly every photography organisation has taken part in the consultation process. But virtually every objection or suggestion from us has been ignored. On that evidence it is extremely unlikely that having a "say" will have any meaningful impact on the scope of the Act and we will simply be included to legitimise due process.
... The IPO have no intention of protecting photographer's IP. Their aim is to see it exploited without considering what we would like to do with our property.
More here:- https://www.facebook.com/Stop43
