by Tim Gander

Yep, that was 2010 all right.

view of tops of austrian mountains

Merry Christmas and a Happy New Year!

This being my last blog post (or in the geeky spirit of the internet “blost”) before Christmas and the New Year, I thought I’d take a quick look back at 2010 and a quick look forward to 2011, trying hard not to pull a muscle in my neck with the effort.

2010 has been a tough year for the “industry”, as was 2009. Well actually, it’s been tough for professional photographers for about the last 10-15 years, but I’m not going to go into that now.

And so back to the year which is just staggering to a close. What thrills we’ve had in 2010! The fight against the Orphan Works clause in the Digital Economy Bill which photographers won by the skin of their teeth and as the Labour government drew its last breath. Looking forward to 2011 though, it looks as though we’re going to have exactly the same battle again. Only this time with those who had pretended to be on our side in the last battle; the Tories, with David Cameron apparently believing that businesses like Google couldn’t have started here because our copyright law is seen as too restrictive. I fear a knee-jerk (or just jerk) reaction will go too far the other way and kill creativity in this country.

I’m going to look at that situation in more detail in the new year, but suffice to say the signs aren’t encouraging.

On a personally professional level 2010 wasn’t as bad as I’d expected. 2009 had been awful, but things picked up again this year, and I noticed a marked change in attitude to professional photography.

All through 2008-2009 I’d been rebuffed by designers who claimed microstock to be the New Messiah. They didn’t need me because they could get pictures for a few quid. Their clients didn’t need me because their designer had told them they could get images for a few quid. I was beginning to feel a little unloved, but I knew this festival of cheap, cheesy stock wasn’t founded on a true design ethos and as we moved into 2010 I noticed a gradual change in the conversations I was having with designers; “I’m a bit fed up with iStock,” they started to say. At first I thought it was coincidence that a couple had said it, but the work started to build up and I realised that designers had realised what I’d been saying all along: Corporate clients’ websites are all starting to look the same, and that’s not good for business.

By the middle of 2010 some had started to convince their clients of the need for a return to real photography, and commissions started to come in thicker and faster than they had at the opening of 2010. I’ve always been fortunate to have loyal clients that I work for directly, but I do like to work with talented designers too, and I was starting to worry they’d all gone a bit iStock stark raving mad.

So for me, 2010 has been interesting. 2011 promises to start with a bang with large projects planned in for January and February, so next year I’ll hit the ground running, rather than just hitting the ground.

Politically it’s going to be a tough year again for the industry. I mentioned orphan works earlier, and there is a copyright review underway which will look at this and the extended collective licensing proposals, which may well cause more problems than they aim to solve. There’s also a review of online copyright protection underway, though that’s on hold while legal wrangling over parts of the DEB are on-going.

I’d say then that I’m personally more optimistic about my own business in 2011, but pessimistic about the future of the industry as a whole due to the lack of understanding among our political leaders of copyright and it’s vitality to our industry. This issue could go either way, but what little I’ve seen hasn’t looked pretty. Let’s hope that by this time next year I’m writing about how the professional photographic industry is safe for a few more years.

Happy Christmas everybody, and all the best for 2011.

Tim

in My News 3 comments
 by Tim Gander

The Fat Lady has sung…

YES to victory over DEB

Professional and amateur photographers can celebrate this morning!

And what a sweet song of victory it was. Thanks to Editorial Photographers UK (EPUK), stop43 and thousands of individual photographers, clause 43 of the Digital Economy Bill was dropped (proof here if you scroll down to Enforcement Obligations) last night, and the bill was passed without it.

I wish I could add my thanks for the support of organisations like the British Association of Picture Libraries and Agencies (BAPLA) and the Royal Photographic Society (RPS), but instead they chose to opt for having their tummies tickled by Government perhaps (though presumably not in the case of the RPS) with a view to becoming licensors of orphan works themselves once the bill was passed. Instead they’ve left themselves damaged for having tried to sell copyright for a fistful of beans.

But let’s not be too proud in victory. All these organisations took views which they thought were correct. They operate in an unfamiliar environment now, and we will need to work with them over future legislation which will surely be tabled by the next Government. Copyright laws do need reform, photographers want it, and individuals and “representative” organisations will need to work alongside each other to achieve a fair balance between creator and consumer. All we ask is that our work, and the work of countless creative amateurs, isn’t stolen from us and sold to all takers, and that we have a statutory right to be identified as the authors of our work. There are other issues which need to be sorted out, but all in good time.

Perhaps the next important battle is the proposed changes to the Data Protection Act, which will see much photojournalism and street photography outlawed or rendered impossible. One thing at a time, though eh?

in Industry Comment 7 comments
 by Tim Gander

It ain’t Orphan ’till the fat lady sings…

stop43 viral image

If the DEB becomes law with S43 in tact, your photos become fair game.

Today’s the day. Not only will Gordon Brown pay a little visit to Buckingham Palace to ask if he can dissolve Parliament (yes please!), and give us our chance to vote for the frying pan or the fire, the blunt axe or the sharp one, but it’s also the day the Digital Economy Bill gets its Parliamentary debate (such as it will be) and will either be voted through in the wash-up, or dropped. If it goes through, it may or may not include Section 43 which deals with orphan works.

In the Parliamentary equivalent of a smoke-filled room, all the horse trading between vested interests, and personal ambitions of departing politicians with an eye on their post-political careers, will come into play. Forget democracy, this is a seedy little private auction for business and career interests.

There is hope though, even at this late stage. A couple of days ago, the conservatives announced they would oppose Section 43. But of course there is still a risk of a last-minute change of mind (they are politicians after all), and we’re still not entirely sure which way the Lib Dems want to go. They’ve made encouraging noises about how Section 43 should be changed, but no clear commitment to oppose it at this stage. Personally, I hope they have the integrity to oppose the entire DEB on the basis that one afternoon isn’t enough time to debate anything as complicated and contentious as this bill. If they do that, and the Conservatives stick to their announced opposition, the bill would fail to be passed.

We have to believe that at the very least, Section 43 will get dropped. The amount of time and effort expended by my colleague photographers in fighting this ridiculous bill could have been better spent doing our jobs or completing VAT returns and getting our books up together for the end of the financial year. But no, some daft politician somewhere managed to come up with a system of dealing with orphan works which was so insanely un-balanced and damaging to our profession that we had to pour all our efforts into this.

And before you start playing your violins for us, remember that even if you are not a professional photographer, even if you are not based in the UK and even if you only take photos of your drunk pals on a Friday night, if some commercial or political organisation thinks your pictures are worth stealing and using without payment or permission, the orphan works legislation would affect you. If you’re in a photo taken by someone else that gets used without payment or permission, this legislation would affect you.

So let’s wish Gordon a nice trip to the Palace and hope all this effort has paid off.

Read more and keep up with latest developments here: copyrightaction and here: stop43

Jeremy Nicholl’s excellent blog continues to inform on the developments. Click here for more.

in Industry Comment 3 comments
 by Tim Gander

Orphans ‘R’ Us

viral photo condemning digital economy bill

Stop 43 has made virals with which to lobby your MP.

I just wanted to start this article by thanking everyone who read my last article, “Orphan Works. No It Doesn’t“. Each and every one of the 3,724 of you and counting, which is a personal record by a distance of about 3,600 (give or take). What the article proved to me is that A LOT of people are seriously concerned about the Digital Economy Bill.

So where are we now with the DEB? Well, we’re 5 days from triumph or disaster. Less than a week until the Government either rushes through this dog doo of a bill, or sees sense (HAHAHAHAHA!…) and decides that democracy is too important to usher in such a contentious and complicated bill without proper scrutiny(…HAHAHAHAHAHA!….)

We now know who’s lined up to be the culture vultures (pejoratively speaking), who will pick the commercial flesh from the bones of the orphaned works they’d like to sell.

The BBC, Publishers Association and others have signed a letter to Lord Mandelson and others within government exclaiming that without the ability to exploit creators’ works unhindered, their sectors will be damaged. I quote from the letter, which can be seen in full at Stop 43.org:

“We believe this outcome would be catastrophic for the creative industries. The strategic importance of making orphan works available and, for some industries, enabling extended collective licensing schemes, cannot be overstated. Failure to make orphan works available  is likely to result in  far cruder alternative solutions, which would run the risk of contravening the Berne 3 step test, and which would have far-reaching and damaging consequences for our sectors.”

Aw, poor loves. My heart bleeds, it really does.

What they fail to mention (strangely enough) is the converse, massive damage which clause 43 will inflict upon the creators of those original works which the BBC and others would like to exploit.

What we can be less sure of is the position to the DEB of other players. I know there is much disquiet amongst back-bench Labour MPs at the threat to copyright, and the Lib Dems are generally against the DEB being rushed through without scrutiny. Meanwhile, there has been no detectable or recent view from the Conservatives that I can see, and I have neither a Tory MP (mine is Lib Dem) or the right connections to get any kind of response from the Parliamentary Conservative Party.

What I do know is that Leader of the House of Commons, Harriet Harman, has been persuaded to give the bill a full day’s second reading debate on April 6th, which will still only be the Bill’s second reading. We can hope that enough opposition from all sides builds in these last few days, and that some brave Labour MPs go against the party whip to defy the bill once it’s been through the wash-up, assuming it gets that far. It’s still probable though that Labour will have a majority vote on the Bill. Let’s be honest, most Labour MPs don’t give a monkey’s cuss as they fully expect to be bounced out of Parliament pretty soon anyway. That’s if they’re not stepping down for fiddling expenses.

From all this, it’s still hard to say for sure which way things will go. Close to the wire doesn’t describe it, so continue to write, get onto your MPs’ Facebook pages and lobby them there. If this Bill becomes law with Clause 43 included, the consequences will be dire for both professional and amateur photographers. Prepare to lose control over your own photos, regardless of who uses them, how they are used and with no recourse to punish those who exploit them.

Update: Professional photographer Eileen Langsley blogs about the DEB.

Excellent illustration of when copyright abuse backfires monumentally in this article by professional photographer Jeremy Nichol.

in Industry Comment 2 comments
 by Tim Gander

Orphan Works. No it doesn’t.

The UK Government has been pushing a piece of legislation through Parliament called the Digital Economy Bill, the main thrust of which is to set out how the UK manages its digital economy for the future.

Clauses in the bill deal with such subjects as the broadband tax, which charges each household a fee so that all households can be brought up to a minimum connection speed, and controversial legislation allowing illicit file sharers to have their internet connections blocked.

But buried deep within the bill are some clauses which far from protecting the rights of the creative industry, will actually leave almost no protection against infringement. Section 43 of the DEB deals with Orphan Works. Those are creative works (photos, illustrations, videos) which have become separated from their owners. A work with no identifying metadata, no watermark. A child of a creative mind, lost and alone, waiting for Fagin to take it under his “helpful” wing.

The original plan was to allow museums, galleries and the like to release from dusty vaults tens of thousands of forgotten works, the creator of which is unknown, so they could licence them in ways that would bring much needed revenue to those institutions. However, certain politicians not being the sharpest tools in the box thought it would also be a “good thing” to encompass ALL works whose creators could no longer be traced.

As an illustration, a photo you take on Wednesday morning, post to Flickr by lunchtime, is lifted by an unscrupulous blogger or corporate marketeer by 5pm and so (because they stripped your watermark and IPTC info) created an instant orphan by teatime. Anyone stumbling upon that stolen version will have no idea who took it.

tim of horse meat

Your photos could be stolen and used for anything. However objectionable the context.

Because there is no way to trace that photo back to you, even a “diligent” search (as required under the act) would not reveal your ownership of the photo. So anyone else wanting to use that image just has to pay a made-up fee to a newly made-up UK Government licensing body, and off they’d go on their merry way, using your photos for heaven knows what.

If at some point you happen to stumble upon that use of your photo, you’ll be able to go to the Government and ask for “some” money for its use. Assuming the government can see that you took the photo, and that the user of the photo paid the government some money, or beans or a sheep, you’ll be able to claim a fee (or beans, or sheep, who knows?) This fee may or may not reflect the commercial value of your photo, or the money spent taking it, but no matter. Government knows best.

There isn’t time here to go fully into the nightmare scenario of child identification/model release/property release issues in orphaned works used on the net, or exclusivity agreements a photographer may have had with their client before the photo was nicked. Nor is there time really to go into what happens when a UK company steals a photo held by, oh let’s say, Getty – an American company with lawyers whose litigious fingers are twitchier than a Wild West gunslinger’s, and whose fighting fund would bale out Iceland and Greece rolled into one.

The Digital Economy Bill is complicated enough, but the legal ramifications of what happens when it becomes law and all starts to go horribly wrong, will make your head spin like an owl in a blender.

For further enlightenment, go to: Copyright Action, or Stop 43.

Whether professional or amateur, it’s important (if you care about photography at all) to contact your local MP now. The bill looks set get thrown into the Parliamentary “wash-up” on April 6th, where it will not be debated at all and will become law, so there isn’t much time to react.

Other blogs on the subject:

Irish perspective from professional photographer Neil Danton, but mind the blue language…

Scottish photographer David Robertson gives a view.

in Industry Comment 15 comments