Orphan Works bill in the UK

[decosnapper 37]

Wetpixel,

 

Here in the UK, our esteemed government has decided to amend our Copyright Act. Key points of the amendments that relate to photographers are:-

 

1. Legislation of Orphan Works - the ability to use an image whose creator cannot be identified with no penalty.

2. The creation of a collective licensing body.

3. The power to amend the copyright act in future without scrutiny.

 

For photographers - amateurs and pros alike - is not good news. in brief:-

 

Anyone who "finds" and image can use it after paying a fee set by -as-yet-to-be-determined-third-party who has no idea of it's true value.

If you don't claim the image as "yours" the fee goes to our government after a yet-to-be determined time.

A government department, unconnected to the image creation process where the risks and overheads are unknown, can set a fee for your work.

Any Secretary of State can change copyright legislation without due process.

 

If anyone thinks our (UK) government can do a good job then all I can say is "good luck and remember bankers bonuses and the duck house expenses MP". In other words, do not expect your government to spend it's income wisely.

 

If you do not think this is a good idea and you are a UK voter then please write to your MP and send a copy to 'scrutiny@parliament.uk' referring to "Objections to Digital Economy Bill [HL] 2009-10". If you are unsure as to what to say, then by all means PM me.

 

This would include use of images "found" on the Web so will have far-reaching consequences no matter where the image is created or the legislation under which the creator lives. Regardless of who your senator/member of parliament/legislative representative is:-

 

Make sure ANY posting of ANY image carries a copyright statement. Best protection is "© Yourname" AND embed the same including your copyright details into the metadata. By posting images with NO notice, you are starting the process of creating an Orphan Work.

 

Who will gain most from Orphan Works? Big business who are sitting on millions of images where the owner is unknown. There are hundreds of cars in my street. Just because I don't know who they belong to does not mean I should steal one - right?

Edited December 4, 2009 by decosnapper

[Elainew 1]

Absolutely right, Simon. Thanks for highlighting the issue and encouraging us to object.

[CompuDude 0]

Wow, as written, that sounds pretty bad.

 

However, do you have an alternative solution as to how best to deal with genuinely orphaned works? It's a shame to commit great material to the dustbin of obscurity and destruction just because no one knows who owns the rights.

 

I agree this proposal seems poorly drafted, but do you think there is a reasonable middle ground somewhere?

[decosnapper 37]

However, do you have an alternative solution as to how best to deal with genuinely orphaned works? It's a shame to commit great material to the dustbin of obscurity and destruction just because no one knows who owns the rights.

 

The material is not in the dustbin, neither is it an "orphan" - more like its a child lost in the playground. Dustbin infers that there is no value in publishing an "unknown". As it stands with copyright legislation, anyone can publish an unknown.

 

One of the CDs I own (Joy Division to be precise) has used images by an unknown creator but there is a caveat printed on the sleeve; if anyone turns up that can prove ownership, then a license fee will be paid. The images are unique and a historical record. None can be reproduced (the lead singer committed suicide in 1980) but the fee, if/when they claim, goes to the creator. As it stands with Orphan Works legislation, any fee would be set by and paid to a government department, and if the owner is a no-show after a -yet-to-be-determined time the proceeds of the license fee goes to the government. If the owner turns up they get an arbitrary fee, less an administration charge.

I have $5 in my back pocket that says the repro fee set by a third party will be S**t and the admin fee extortionate.

 

So there is an alternative to keep historical records alive and well - But no one seems to have stopped and thought about it. There is no dustbin, just another revenue stream for a bankrupt government.

Edited December 4, 2009 by decosnapper

[CompuDude 0]

I get what you're saying in terms of government ineptitude, but I can still envision quite a few scenarios where works will never again see the light of day, solely because of concerns about copyright issues. That's what I was referring to, so let's not get caught up in what I meant by "dustbin".

 

Or are you saying you don't believe that there could ever be such a thing as a genuinely orphaned work, under any definition?

[decosnapper 37]

Or are you saying you don't believe that there could ever be such a thing as a genuinely orphaned work, under any definition?

 

Someone owns the rights to an image, sketch, painting or music. If the owner cannot be found then there are ways around this (see my previous post re Joy Division). The question is; who gains the most if orphan works can now be licensed? I wonder, for example, how many images Google and the likes are sitting on, wanting to use them for commercial purposes but cannot? My main objections about orphan works is thus; large organizations will take most reward and the creator will get nothing.

 

Images of a historical value could be considered orphans, but this is not going to be the main benefit to society as whole. The content providers, not creators will be rewarded.

 

Sadly a lot of photographers only have themselves to blame by kick-starting the creation of an unknown owner. By posting images on the web lacking any copyright notice or embedded metadata the image is a couple of mouse clicks away from becoming separated from its author......metadata and copyright notices won't stop the mouse clicks, but without them finding the true owner is impossible.

 

So by definition, there is no such thing as an orphan work. The term is too broad and could relate to images of the second world war to something posted on the web yesterday. To apply blanket legislation to allow use is an absolute no-no and I can never endorse such a decision - unless someone has a compelling reason to the contrary?

[CompuDude 0]

I'm sorry, but I cannot agree that "someone" ALWAYS owns the rights, in a meaningful sense.

 

If the photographer is dead and has no dependents, isn't that an example of an orphaned work?

 

Should the work go into the trash because no one can get rights to use it commercially?

 

I take it, then, that your main objection is seeing the government benefit, in any way, from these genuinely orphaned works?

 

I don't live in the UK and have no dog in this race, so I'm just curious/conversational, so please don't take this as any sort of attack.

[TheRealDrew 0]

There was a Discussion of U.S. Orphan Works awhile back that was interesting. At the time there were some quips that only greedy U.S. would try that

[decosnapper 37]

I'm sorry, but I cannot agree that "someone" ALWAYS owns the rights, in a meaningful sense.

 

If the photographer is dead and has no dependents, isn't that an example of an orphaned work?

 

Should the work go into the trash because no one can get rights to use it commercially?

 

I take it, then, that your main objection is seeing the government benefit, in any way, from these genuinely orphaned works?

 

I don't live in the UK and have no dog in this race, so I'm just curious/conversational, so please don't take this as any sort of attack.

 

The scenario where a photographer dies, leaving no beneficiaries to their estate is possible but in all honesty how many times a year/decade would that happen? Partners/brothers/sisters/cousins/children/aunts/uncles are all potential heirs that could claim the copyright of our dead photographer.

 

Do we really need deep changes to copyright legislation to "fix" this problem? Not in my view. The number of images that have no heir apparent must be insignificant compared to the number of images out there on the web where the photographer is alive and well, still taking images. So to fix a tiny number of "dead photographer no heirs" images, we open the floodgates and allow unrestricted use.

 

Don't worry Compudude - nothing personal taken. Many on the list might not live in the UK.......but does the web reach globally? Could a US citizen's images become so-called Orphans in the eyes of a UK government? I can't see how they can fail to once they are posted on the web with no copyright information. The web means changes to copyright legislation affects us all. The Berne Convention was supposed to keep countries on a roughly level playing field. What happens to copyright legislation in the UK will potentially affect every photographer.

Edited December 6, 2009 by decosnapper

[wizbowes 0]

So what happens with Model Consent in these photo's? Do orphan works get some kind of deemed model consent with them. What happens when an orphaned photo with is used in a high profile advertising campaign and the model comes forward and says that they never signed a consent form or that the photo is being used outside of the consent they gave. Who's liable? The government one would think seeing as their the ones selling the license to use it - but if the model comes forward they'll probably then be able to trace the photographer. Would he then be liable? I wouldn't put it the past the twice disgraced, unelected Peter Mandelson.

 

It's a horrible can of worms that serves no-ones interest (except free photo's for businesses). If you can't get permission to use it then you can't use it IMHO. If works die then so be it.

Edited December 20, 2009 by wizbowes

[decosnapper 37]

So what happens with Model Consent in these photo's? Do orphan works get some kind of deemed model consent with them. What happens when an orphaned photo with is used in a high profile advertising campaign and the model comes forward and says that they never signed a consent form or that the photo is being used outside of the consent they gave. Who's liable? The government one would think seeing as their the ones selling the license to use it - but if the model comes forward they'll probably then be able to trace the photographer. Would he then be liable? I wouldn't put it the past the twice disgraced, unelected Peter Mandelson.

 

It's a horrible can of worms that serves no-ones interest (except free photo's for businesses). If you can't get permission to use it then you can't use it IMHO. If works die then so be it.

 

 

It is indeed a nasty piece of work. Another gotcha is the issue of minors in images, in particular wards of court. Who would be liable if a minor objected to having their image used?

 

And then there is misrepresentation. Without control anyone, no matter how obnoxious their opinion, could take an image and use it to represent their views......

 

It also trashes the Berne Convention, giving equal protection to copyright across different countries. A US citizen's images could easily become a UK orphan....

 

 

Wizbowes, it would be worth writing an email outlining your objections and sending it to:-

 

Your local MP

scrutiny@parliament.uk with “Objections to Digital Economy Bill [HL] 2009-10” as the subject

huntj@parliament.uk – Jeremy Hunt, Conservative MP for Media, Culture and Sport

fosterd@parliament.uk – Don Foster, Liberal Democrat for same

mpst.mandelson@bis.gsi.gov.uk - Lord Mandelson, unelected sponsor of the bill.

 

My MP replied and sent a very generic letter outlining the objections his party held. None of which actually mentioned "photograph" or "image". What did I read into this? Firstly, the letter was unread or not understood (a follow-up phone call has ensured the letter is read) and, perhaps more worryingly, those in power do not realise photographs are protected by copyright......

 

So if anyone else wants to show they value not only their work but photography as a whole, I suggest an email to the list above outlining why the bill is so wrong.

Edited December 20, 2009 by decosnapper

[Paul Kay 65]

It's a horrible can of worms that serves no-ones interest.

That about sums it up - another classic piece of ill-conceived, ill thought out and ill considered piece of potential legislation.

 

And without wanting to depress anyone too much, having emailed a number of AMs (effectively Welsh Assembly Government MPs or elected representatives) on scallop dredging, I received an email inferring that I would only get one global reply from all of them - which of course I haven't had. This comes from an elected body who are requesting more law making powers despite having shown a complete inability to utilse their existing powers properly as yet. The only saving grace of the orphan works legislation is likely to be that it will be written so badly as to clog up court time and be thoroughly indecisive like much other recent legislation so many will be too worried to use images that are considered to maybe/possibly/might be orphan works lest they return to bite. And yes, I am cynical - last time I was in a voting booth I couldn't actually bring myself to vote for any of our main parties.

[decosnapper 37]

And without wanting to depress anyone too much, having emailed a number of AMs (effectively Welsh Assembly Government MPs or elected representatives) on scallop dredging, I received an email inferring that I would only get one global reply from all of them - which of course I haven't had.

 

I wrote a letter outlining my objections to the sponsor of the Bill, the Prince of Darkness Lord Mandelson. A reply was forthcoming. You can read it here - I scanned it to a PDF.. What does it tell us? One thing; the powers that be have no idea when it comes to contemporary photography.

 

Apparently, and I quote The problems (of orphan works) for the most part do not concern contemporary photographs. This is utter bullshit that only a complete halfwit could hold as a truth......

 

Here's another example; "It is not intended that the definition will cover work such as yours where the rights owner is clearly identifiable and traceable. But there is no obligation to credit me as the rights owner - something newspapers and magazines have been exempt from doing and will remain so and thereby creating new orphans....which can be used/misused etc.

 

I will post my reply for others to digest once I have finished digesting the bile and composing a response.

 

Paul/everyone - please write to the following:-

 

scrutiny@parliament.uk with “Objections to Digital Economy Bill [HL] 2009-10” as the subject

huntj@parliament.uk – Jeremy Hunt, Conservative MP for Media, Culture and Sport

fosterd@parliament.uk – Don Foster, Liberal Democrat for same

mpst.mandelson@bis.gsi.gov.uk - Lord Mandelson, unelected sponsor of the bill.

 

Particularly the last one - Mandy sponsors the Bill.

Edited December 30, 2009 by decosnapper

[Paul Kay 65]

Simon

 

Do you know whether this Bill will infringe existing European Community law - a real possibility - because if so then it may well fail when tested. I will write but suspect that I will get a standard 'form' letter back - this is exactly what happens when writing to minions who serve the minister as their job seems to be to shield the 'decision makers' from any contentious correspondence. In Wales we have several complaints which have been put in to the EC over scallop dredging in an effort to make the government honour the legal responsiblities which IT SIGNED UP TO. It wouldn't surprise me if this oephan works bill may infringe on existing EC copyright law and can be challenged under it. The EC has its uses .

[decosnapper 37]

Simon

 

Do you know whether this Bill will infringe existing European Community law - a real possibility - because if so then it may well fail when tested. .............It wouldn't surprise me if this oephan works bill may infringe on existing EC copyright law and can be challenged under it. The EC has its uses .

 

True, the EC can have uses....I think there is a good chance orphans will fall foul of EC regulation. France (droit du auter - apologies for mis-spelling) and Germany both have far stronger copyright legislation than the UK. But I don't want to rely on it to fail on this point alone. There is some mention of EC in the letter (see my last post) but only in relation to collective licensing bodies. Hope, as in all cases, is never a strategy I held to ensure success - hence the direct action.

 

I had a somewhat fraught conversation with my MPs' secretary who espoused the "hope someone reads it" approach to my last submission to him. I was assured the letter would be read......words are one thing, deeds are another and as it stands I will be conducting a negative campaign against said MP at the next election if he fails to lift a finger and actually do something useful - like scupper this Bill.

 

And I do have a meeting on the 7th of January with Lord Clement-Jones. Direct access to a decision maker is rare, but I will put the case as best I can. I know it's a long way to come Paul, but if you are in London by chance then any support would be most welcome. If you can make it I will advise the Whip's office there will be two of us.....

 

But thank for writing Paul. The more who do, the better. Like you, I have lost faith in democracy.....but I just can't sit on my arse wringing my hands and complaining to the forums.

Edited December 30, 2009 by decosnapper

[Paul Kay 65]

For those of you who are not upset by bad language (be warned), here is a clip of an Irish politician who has finally lost his cool. He'd probably get my vote for simply not being prepared to back off.......

 

http://www.youtube.com/watch?v=_f-TMSbQ8mk

[decosnapper 37]

If anyone is interested, the reply penned to Lord Mandelson can be read here. By all means use it for a basis for your own letter..... the more who write the better for two reasons; the Bill is heading towards committee stage and bogging it down with paperwork slows the process, hopefully until the general election is called. Or it will force amendments. Either the Bill changes or is forgotten about as every MP scrambles to keep their job.

[decosnapper 37]

(Apologies for cross-posting - this is on Digigreen too......)

 

I'm back from Laos and as promised, an update with some good news:-

 

LORD CLEMENT-JONES

LORD RAZZALL

VISCOUNT BRIDGEMAN

BARONESS BUSCOMBE

 

The above-named Lords give notice of their intention to oppose the Question that Clause 42 stand part of the Bill.

 

- removes Orphan Works and Extended Collective Licensing in their entirety ( they also propose a whole series of minor amendments as well )

 

In other words; orphan works and collective licensing would be removed from the Digital Economy Bill if the vote was successful.

 

We are not out of the woods but this is a good starting point. The Bill will have to go through the Commons and this kind of amendment can only help, in my view. There is also a good chance that this Bill will be bogged down in a general election....

 

If you have not done so, please write to your MP asking that this amendment be supported in full. I cannot stress the value of doing so; there is an election looming and MPs will be bending themselves over backwards to be seen to respond to their voters needs.

[Autopsea 7]

I guess that for any photo on the web, even without a copyright, the owned can be found.

on flickr? easy to know.

on a forum? the name is to the left, easy to contact.

 

I'm not sure it is not more dangerous for company trying to use Orphan -as you can then prove it was easy to find you, and so they have to pay all the charges+lawyer+photo- than for the photographers.

It can be dangerous for people posting other's photos on their blogs too. They will maybe be responsible of making the owner "hard to find".

 

Anyway, it is better if nothing like that happens.

Can we write to these emails adress even not being in the UK?

[decosnapper 37]

I guess that for any photo on the web, even without a copyright, the owned can be found.

on flickr? easy to know.

on a forum? the name is to the left, easy to contact.

 

I'm not sure it is not more dangerous for company trying to use Orphan -as you can then prove it was easy to find you, and so they have to pay all the charges+lawyer+photo- than for the photographers.

It can be dangerous for people posting other's photos on their blogs too. They will maybe be responsible of making the owner "hard to find".

 

Anyway, it is better if nothing like that happens.

Can we write to these emails adress even not being in the UK?

 

The web is not static and images are lifted all the time........Putting an image on any website without copyright info is the first step to create an orphan. The second step is for someone to "save as" and then forward the image to someone else, or just leave it on their work PC. When someone finds the picture in its new location, it is without identification and by definition an orphan. Orphans are also created in other ways and anyone with a PC can take a marked image and remove metadata and crop watermarks.

 

And the point of orphan works is that companies will be at liberty to use an orphan and pay a license to a collecting body who will distribute the money to the owner - if they claim. If the owner is a no-show, the money goes to our government....

 

Yes please write, even if you live outside of the UK. The web reaches everywhere and everyone who has posted an image on the web may well end up finding their image used as an orphan here in the UK.

[Otara 0]

Is there anything about how much work has been done before its reasonable to call it orphaned?

 

As in is 'no metadata' enough to call it orphaned, or is there an expectation of reasonable search procedures? Eg if there is an image on Flickr and marked as copyrighted, does 'there was no metadata on the image _I_ got' count as a reasonable defense?

 

Otara

[decosnapper 37]

Is there anything about how much work has been done before its reasonable to call it orphaned?

 

The section of the Bill related to Orphans is littered with "we will decide later, just agree to what we want in principle". Knowing how competent governments are, this is exceedingly dangerous.

 

Without going into how our parliament (mal)functions, what the government is doing is asking for major changes to copyright law with primary legislation before deciding how the changes will work and implementing those with secondary legislation. Primary legislation means a full debate and scrutiny in parliament. Secondary does not.

 

It is being argued that these changes - changes that are as wide-ranging as these - require primary legislation.

 

If the Bill passes into law as it stands, the government can pretty much decide how images would be considered orphans. They have good intentions (and I quote) "It is not indended that the definition [of an orphan] will cover work such as yours...." but there is nothing in primary legislation to that effect.

 

So it may not be their intention to screw every photographer on the planet, but the road to hell is paved with good intentions.

 

Just about anyone on the planet with a PC can create their own orphan image (strip the metadata, crop the ©) so can only guess at what our government would consider orphaned at this stage.

 

If you want to write raising objections then the email addresses are on page 1 of this thread.

[wizbowes 0]

I've just sent an email to my MP via the website writetothem.com. Copy of the text below. Bit of a rant but please feel free to cut and paste. (I'm releasing it under creative commons ). It's really easy to do (just pop in your postcode and detail) so please take the time to send something.

 

Dear Nick Raynsford,

 

I'm writing to you to ask you to support the amendment proposed to the Digital Economy Bill that is currently supported in the upper house by Lord Clement-Jones, Lord Razzall, Viscount Bridgeman and Baroness Buscombe. Specifically their intention to oppose that Clause 42 stand part of the Bill. Specifically removing the Orphan Works and Extended Collective Licensing in their entirety.

 

I'm particularly concerned about this bill with respect of photography as a keen amateur photographer. The Orphan Works proposals are badly thought out and show a lack of understanding and thought as to how 'Orphan works' are be created on the internet. Photos are commonly ‘taken’ from sharing sites, personal websites etc and used on other websites without permission after stripping out any copyright information. Under this bill that would then be classed as an Orphan Work and fair game for commercial use. To say that this happens all the time would be an understatement. Image theft on the internet is rife and this bill aims to provide some kind of legality to secondary use of stolen images.

 

Furthermore many issues are not addressed and I don’t believe they have been properly considered. Photographers are often required to gain model releases for commercial works. What would happen should an Orphan work be found and used in a way that is against the terms of the model release? Who would be responsible for the breach of contract and subsequent damages? The photographer, the user of the photo? It's not clear and in practice could never work. This goes double for photo's involving minors.

 

Lastly, I find it most bizarre that, in a bill where the rights of corporate copyright holders are judged so important that the government is proposing to do away with the due process of law to prevent copyright 'theft' and piracy, that at the same time seeks to specifically undermine the existing rights of individual professional and amateur photographers and copyright holders. A cynic might suggest that this bill has been drafted explicitly to benefit corporations at the expense of the indivuals existing rights.

 

In summary - I feel that just because you can't trace the owner of a copyrighted item does not give you the right to use that item. I believe it's quite explicitly the reverse - if you can't find the owner then you do not have the right to use that item. Certainly I give nobody permission to use my photo’s and my rights as the creator and copyright holders should be respected over the rights of all would be users whether they can track me down or not.

 

I hope that you feel the same way as me and will see fit to vote against the bill as it stands unless the offending Clause 42 is removed.

[decosnapper 37]

I've just sent an email to my MP via the website writetothem.com..............

 

Many thanks Wizbowes. The more who write, the better......MPs are listening - there is an election looming.

Edited February 3, 2010 by decosnapper

[jeremypayne 0]

There are hundreds of cars in my street. Just because I don't know who they belong to does not mean I should steal one - right?

 

What if there is a car parked in front of your house and it has been there for 17 years ... but the law says to tow it, you need permission of the owner.

 

At what point would you tow the car without the owner's permission? Would you ever seek to change that law?