by Tim Gander

Fact – Myth-busting requires facts

There has been much a-do about the Enterprise Regulation Reform Act (ERRA) and I’ve written about it before and shall no doubt have to write about it again. Much to my irritation.

In response to the many millions of words written about it and an e-petition on the Number 10 website, which currently stands at almost 27,000 signatures, the Intellectual Property Office has issued a statement which it hopes will calm the fears of photographers.

The problem with the document is that writing the word “Fact” in bold lettering at the start of a sentence doesn’t make that sentence irrefutable. There are still too many variables, too many vague answers to specific points and the act has as yet no regulations applied to it, which is why so much that has been written can only guess at what the real purpose of the act will be.

Reading the statement, what kept jumping out for me was the idea that orphaned works could be licensed and licensed “at the going rate.” I’d very much like to know how a government-appointed agent will decide the “going rate” for any particular photo. How will they know whether or not consent for the proposed use would have been granted without the author having been contacted? How will they know what the rights holder would have charged for the use of that image if they were given the choice?

How will anyone not connected to the image or its author know if any people in the photo would be happy for their likeness to be used in any given context? Who will even know which country the image originated in? Or whether the original client for that photo is happy for others to use it? Many images (most of the ones I take for my living) are supplied on an exclusive basis.

I quote here a typical paragraph from the IPO’s response:

“Myth – anyone can use my photos without my permission

Fact – Anyone wishing to use a work as an orphan must first undertake a diligent 

search for the rights-holder which is then verified with permission to use the work 

granted by the Government appointed independent authorising body. If the work is 

not genuinely orphan then the rights-holder should be found, if the search is not 

properly diligent, no licence will be issued.”

Presumably though, if it is decided the search was diligent, but the rights-holder was still not found, the image can be paid for at an un-specified “going rate” and used with permission of the governing body. Therefore, without the rights-holder’s permission. That paragraph, like so many others in this document should read simply:

“Fact – anyone can use my photos without my permission

Fact – Maybe. There will be some kind of procedure as yet unspecified and you might lose control of your image, but don’t worry your silly little head about that.”

It will be interesting to know how on the flip-side of this, the rights-holder is supposed to discover their work has been used and then claim whatever money (or Green Shield stamps or bellybutton fluff) has been held in safe-keeping for them. Are creators expected to constantly check an ever-expanding register of works for use of their images? If the granting of licences is an exception rather than a rule, this might even be possible, but it’s still not ideal and still rides roughshod over the basic tenets of copyright.

IF the IPO had come straight out and said “this act will ONLY apply to works held in recognised historical archives” a lot of fears might have been assuaged, but they didn’t.

The IPO also makes no mention of any plans to strengthen moral rights – the right to be identified as the author of a work, the right not to have one’s work mis-attributed and in particular, the right not to have identifying data stripped from one’s images. Simply by re-enforcing the the creator’s right to have their identity kept with the work would be a start.

The problem with the IPO’s statement is it’s lack of clarity, either through insufficient understanding of their own subject, or because there is unseen industry pressure to keep things vague until the great reveal of the guidelines by which time it will be too late for photographers to properly and comprehensively defend their rights.

Given tight enough regulation, the ERRA could be a good thing for photographers by making it clear our works, even where their identifying data has been removed, are not orphans, but until the guidelines are published we have no idea of the intention of the legislation. By the time we do know, it’ll be too late to do anything about it. I have a terrible feeling we’re being inched towards a goal that was decided upon long before Hargreaves set up his review.

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 by Tim Gander

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.

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 by Tim Gander

Groundhog Year for Photographers

Another year, another copyright review. When have we been here before? It’s like Groundhog Day, but on an annual basis. Ok, maybe not quite yearly but there have been quite a number of reviews and proposed changes to legislation in recent years. Of course for the purposes of this article, I’m concentrating on copyright as it relates to photography.

Most reviews look at copyright in the round, and often the photographer’s concerns are drowned in the din of discussion about whether or not Cliff Richard should continue to make money from his sound recordings long after he’s gone into cryogenic suspension.

copyright stamp

Is copyright really so outdated?

The latest copyright review, currently underway, aims to bring UK copyright into the 21st century. My only problem with this concept is that copyright is fine, but what is lacking is education and understanding. And yet again photography will be seen as some hobbyist’s side-show and not worth considering, but I suspect this is because the professional photographic industry is less vocal than the music, movie and gaming software industries. Plus photographers tend to be solitary souls working in isolation and aren’t seen as a coherent industry.

It doesn’t help that many professional photographers don’t understand basic copyright or licensing, and many are reluctant to speak out, favouring the approach of leaving it all to someone else to lobby and campaign to save their means of income.

Neither does it help that those bodies which are meant to represent professional photographers don’t seem to understand the issues either. The Royal Photographic Society slipped up badly during the debate of the Digital Economy Bill in 2010 by supporting the orphan works clause so let’s hope they and others have learned from that experience.

In fact orphan works is bound to raise its head once again in this current review. Just to explain, orphan works are creative works which become “orphaned” from their creator through the stripping of any identifying information. It’s easily done on the internet, and all too easy for those wishing to steal photos for their own gain.

Orphan works also include anything currently lounging in museums, libraries or other archives which have no traceability back to a “parent” creator, and there is a case for making these works available for research or inclusion in other culturally beneficial works. The problem is, lobbyists want any legislation that releases those works to also cover any photo taken by anyone at any time. Including the photos you’ve taken or will take in future. And they want to be able to exploit or licence those photos for any use they can think of without having to negotiate fees and usage with you. This would happen under a system known as Extended Collective Licensing.

This would ride roughshod over copyright law, which allows a creator the final say on how, where and when their work is used as well as, of course, at what price. For commercial and social photographers this would cause a nightmare as much of what we shoot is commissioned exclusively for clients. How can we protect that exclusivity if orphan works legislation allows unfettered access to images which may have been stolen in the first place?

Unless photographers, amateur and professional, pull together we are going to get lumped with legislation that will make it virtually impossible to protect our work. For more information on the current review, click here. Even if you’re not a professional, it’s worth signing up to blogs like mine and the EPUK Weekly News which will aim to keep you informed of developments, because there will come a moment when you will need to lobby your MP and MEP on this issue.

Funny Tim is away this week. He’ll be back again soon.

 

Thanks to http://www.obsidiandawn.com/ for the Photoshop effects brush I used in this week’s illustration.

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 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

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