The sky hasn’t fallen in, but it’s looking decidedly dodgy

On February 26th I wrote about the Economic Regulatory Reform Bill and its likely effects on the ability of photographers to control where and how their work is used and whether or not any payment is exchanged for that use.

Sadly I must tell you the ERRB, including the clauses on orphan works and extended collective licensing, is now law. I say sadly because this has happened even though the moral rights of the photographer to be identified as the creator of their work has not been reinforced ahead of this change in law.

In case you’re not aware, an orphan work is any creative work of which the author cannot be found. Extended collective licensing is the selling of the use of orphan works without the creator’s knowledge or consent.

In relation to photographs, the problem with orphan works is they’re being created every second of every day on the internet. The problem with ECL is that it takes away the photographer’s right to set or negotiate their own fees based on the value of the work, or to limit use of the work, especially where exclusivity has already been sold to a client. It also ignores the rights of people within photographs not to be associated with businesses or causes with which they do not agree.

Now, before we all hit the panic button, the ERRB is primary legislation and will be subject to regulations which are yet to be drafted. In an ideal world, the orphan works and ECL clauses of the ERRB will be regulated to only encompass works held in historic archives, of which there are many and whose archivists would like the ability to digitize and ultimately make money from works held in storage whose authors have long since passed on or vanished.

Even within that framework there will be grey areas, but to gather in ALL orphan works wherever they reside would be a grave mistake, and would almost certainly result in legal actions, especially from photographers in the USA who are allowed to claim exemplary damages for breaches of their copyright. In short, it could get very messy and very expensive very quickly.

Photographers both professional, amateur and occasional all need to be very wary of what follows. It would be a good idea to write to your MP in the first instance asking what the intention of the regulations will be and whether it means any photo you take can ultimately be used by all and sundry, without your say-so and with no opportunity for you to say no or negotiate a fee.

Another area of the law which needs attention is the moral right to be identified as the author of your work. This is currently part of the Copyright Designs and Patents Act (1988), but it is weak and with too many exceptions. To be fit for the digital era it is imperative that identifying data, either in a watermark or as data embedded within the image file is protected by law.

Of itself the ERRB could be benign, but that we don’t know what the regulations and restrictions will be and the fact it can be amended without recourse to Parliament are dangerous factors and should worry everyone concerned with protecting their own creative property.

I’ve merely outlined the issues here. Far more detail needs to be worked out to ensure the ERRB doesn’t cut off the ability of creators to make a living, nor to exploit the works of amateurs in ways they could never have imagined or wanted. The creative industries in the UK are too important to our economy, and too easily harmed by badly-framed legislation.

Keep an eye on sites like EPUK.org and BJP online to keep up to date with developments, but remember also to contact your MP to make sure they’re aware of what’s at stake here.