Q: Is every photo I take covered by copyright?

A: Possibly not.

That’s some seriously dangerous thinking by a photographer who staunchly believes that copyright is the lifeblood of this industry, but I think it might be true. So let’s lift the lid on this spectacularly large can o’ worms and see what spills out.

Copyright in the UK is under serious threat. The rather tainted conclusions of the Hargreaves report aim to persuade the UK Government to introduce orphan works legislation, which in tandem with something called extended collective licensing, will allow large corporate organisations to profit from the millions of un-attributed photos currently found on line or stored in ready-made databases (the BBC likes to collect peoples’ photos and then orphan them).

This concept is full of gaping holes ready to be filled by law suits, but I’m almost hoping the legislation comes to pass just so the Government can finally be forced to understand quite how incompetent Hargreave’s review has been with regard the protection of photographers’ copyright and moral rights. I fear nothing less than legal chaos will get them to see sense.

But back to the idea that not every photo I (or you) take is necessarily covered by copyright…

The starting point for copyright in the UK is that it is automatic in any new work. You take a picture; it’s copyright. You don’t have to register it or even declare it’s status as copyright. It just is. But take a look at this clause from the UK copyright law fact sheet:

“Copyright is an automatic right and arises whenever an individual or company creates a work. To qualify, a work should be regarded as original, and exhibit a degree of labour, skill or judgement.”

That’s interesting, because what it means is that if you can’t show that a photo you have taken exhibits a degree of labour, skill or judgement, it may be it isn’t covered by copyright.

Note the “or” in that clause though. A photo could be the product of only one of labour, skill or judgement and it would benefit from copyright protection. It would have to be lacking in all three in order not to qualify.

Spoon in empty bowl

Is any old rubbish protected?

Presumably this is so that people can’t copyright everyday objects in order to prevent their wider use. I can’t copyright a blank piece of A4 paper, then sue anyone who writes a letter on blank A4 paper by citing their work as derivative of my copyright work. Equally I can’t take a photo of a famous landmark, then try to prevent anyone else from doing the same by citing my copyright. Each person who photographs that landmark will own the copyright in their photo of it, not in the scene itself. This point is stretching a little far now, since the photo of a landmark is the “realisation” of the scene, and it’s the realisation of a scene or idea which has copyright vested within it, not the scene or idea itself.

Steel spoon in white bowl

Ah, now it's art! Better watermark this one.

So getting back on track to my point (yet again), when would a photograph not exhibit a degree of labour, skill or judgement? Well presumably when the photographer hasn’t chosen the angle, chosen the camera settings, which lens or focal length to use and hasn’t judged the scene with any degree of care. You could almost argue that someone holding an iPhone up to snap a view has done none of these things and might therefore not have the protection of copyright for their picture.

Dammit; worms everywhere. Discuss amongst yourselves while I fetch the dustpan and brush.

The Orphans are Back!

IP review laid out

Interesting plot, but predictable outcome.

I’d hoped to comment much earlier on the government-commissioned independent Review of Intellectual Property and Growth, but the resulting document produced by Professor Hargreaves and his team has taken me far too long to wade through while still trying to get on with the business of being a photographer.

And herein lies a common problem with such reviews. Those who stand to lose the most are the ones with the least time to spare to influence and pour over the review’s conclusions.

Like may photographers, I simply don’t have time to wade through all 123 pages of the report. I submitted my views back in March, and they were duly noted and published on the Review site, but apart from a few passing references to photography, the review seems to have concerned itself more with music, film and TV rights when dealing with copyright in the creative industries.

So you’ll forgive me (probably thank me) if I don’t go into great detail here about what I think of the review, it’s implications for professional and amateur photographers. I think I may be review-weary, especially as many of the arguments raised and defeated in the Digital Economy Bill debate are predictably reappearing.

What is quite ironic though is that one of the main areas for the review to consider was that of Fair Use of copyright works.

In announcing the review in November last year, David Cameron said:

“The founders of Google have said they could never have started their company in Britain. The service they provide depends on taking a snapshot of all the content on the internet at any one time and they feel our copyright system is not as friendly to this sort of innovation as it is in the United States. Over there, they have what are called “fair use” provisions, which some people believe gives companies more breathing space to create new products and services.”

But it would seem the one thing he picked out for special consideration appears to be the one thing the review recommends against, the truth being that although the USA does have Fair Use exceptions to copyright, this has done nothing to stem the tide of legal actions in copyright disputes.

Cameron was mis-guided to site Google as an example in any event, because unless I’m missing something, Google appears to function perfectly well in this country. In fact I suspect that had Google started in this country, it would have been when their service hit US digital territories that they would have run into trouble.

There’s a generous smattering of conditional terms in Cameron’s introduction, such as “feel”, “some people” and “believe”. In other words, Google had a hunch their startup stage would have been hampered in the UK, but they have no real evidence to support this view.

In essence I’ve not really scratched the surface of the review in this posting, but I’ll sum it up like this:

1 Orphan works is back – I hope someone sees the sense to keep contemporarily-created images separate from museum-held works. Not an easy distinction, except that any orphans then can ONLY be works which have been digitized from orphan originals held by museums, art galleries and other public bodies. And images cannot be called orphans just because the meta data has been stripped (as happens when images are submitted to Facebook, BBC etc).

2 No apparent extra protections for photographers works – no sanctions against the stripping of IPTC info, or the willful creation of orphan works.

3 Worrying references to “flexible legislation” which potentially means copyright law can be changed without recourse to Parliament.

At this stage I can’t say I’m getting overly anxious. The report will be poured over and picked apart. For any of it to become legislation it will have to be drafted by lawyers and debated in Parliament, and in the meantime it seems rulings are coming from the EU which point to better protections for creators, and all this needs to be standardized across the EU, including the UK.

One final irony is that while the report seems to be concerned almost exclusively with music, TV, films and games, the cover features a photo of what appears to be a photographer’s studio. It would be nice if they’d bothered to listen to photographers then.

Reviewing the Review (so far)

Last Friday was the deadline for submissions to the “Independent Review of IP and Growth” (stay awake now) which is looking into intellectual property and copyright in the UK and how it should adapt to this digital age.

The review is headed by Professor Ian Hargreaves, who according to his blog has spent most of his working life involved in the creative industries. Well, newspapers to be precise which I would say USES creative input, but doesn’t strictly count (in my humble opinion) as a creative industry.

Much (ok, all) of the IPO review panel, was made up of corporate suits whose main interest in copyright lies in arm-twisting it from the hands of individual creators, but I don’t want this article to descend into political rantings so I’ll pause there and instead ask the question, “so what happens now?”

Not being an expert in constitutional affairs I can only be a little vague about this, and indeed Professor Hargreaves doesn’t really know either so I won’t be too hard on myself about that.

In a nutshell, the evidence is in, the review team will start to review submissions and evidence, and then report to Government in a few months’ time who will probably um and ah for a while before drafting legislation that will (probably) be deeply flawed and skewed in favour of some future Google-style startup.

So what evidence will the panel and the Prof be considering? Well I have to say, I’m a little surprised that by Friday morning there were only 180 submissions of evidence, including mine. I sincerely hope there was a late and massive surge as the day drew to a close, because that 180 will have come from all quarters – individual film makers, musicians, writers, artists, the trade bodies representing those industries as well as consumers, inventors, entrepreneurs and the publishers, broadcasters and aggregators who deliver creative content. Suffice to say a lot of submissions from many quarters and interest groups, both in favour of and against the strengthening and or weakening of copyright.

epuk logo

EPUK submitted on behalf of its 1,000 members.

However, as with previous reviews and proposals, I fear the voice of photographers will have been drowned out by those who view copyright as an impediment to theft. Perhaps drowned out is the wrong phrase to use if, as I suspect, the number of submissions from UK photographers is pitifully low.

There are thousands of photographers in this country. Think of all the wedding and portrait photographers there must be out there. The editorial, commercial, corporate, advertising, industrial, architectural photographers. You could pave a four lane motorway from here to Moscow in both directions with the skin off the backs of all the photographers in the UK (I didn’t say it would be a good motorway), but where are they when they need to defend their own business assets?

It’ll be the photographer’s enemy and constant companion apathy again. That, and the fact that many of us are heartily fed up with fighting the constant threats to our working lives, while simultaneously trying to get on with our working lives. My suspicion is that if this review and subsequent legislation don’t give the Big Boys what they want (unfettered access to anything you or I create), we’ll end up right back where we started, with another review and another call for evidence.

stop 43 logo

Stop43 submitted on behalf of photographers more generally.

Mr Hargreaves, don’t get too disheartened; Mr Gowers went before you and I suspect someone else will have to conduct another review in another five or six years. Assuming of course there’s anything left of copyright to review by then.

Don’t be submissive, submit now!

The sharp-eyed amongst you may have noticed the tardy arrival of this article. It’s all my fault. I’ve been busy working on new projects, assignments and whotnot, plus last week was half term which made for all kinds of interesting time conflicts.

But as if there wasn’t enough to be a-getting on with, the deadline for the Hargreaves intellectual property review has been looming fast, and this Friday (March 4th 2011) is the last date for submissions. I’ve been working on my submission, and I can’t stress this enough; other photographers have GOT to get their submissions in too, or forever hold your manhoods (and copyright) cheap. Do not complain later that you never got a say in how your work is exploited commercially by anyone who happens to steal it.

And businesses that commission original, exclusive photography for their websites, brochures, annual reports and the like should also consider dropping Mr Hargreaves a line, because if the worst case scenario comes to pass, it will no longer be possible to hold exclusive rights to images (whether taken by a professional or in-house) once they’re posted online, and photographers like myself may have even less say in how the work we do for you is used by others. Frankly, the current safeguards against image theft on the internet are pretty meaningless, and this is one area where the law needs to be strengthened.

Another area is that of attribution. Every photo a professional photographer takes should (if they know what they’re doing) have data embedded which gives the copyright status of the image and contact details of the photographer. It’s called metadata, and it’s imperative that any future law makes it clear that that metadata must be preserved as an image is uploaded to, moved around and/or downloaded from the internet or moved (or copied) from one medium to another to prevent the creation of so-called orphan works.

My submission is shaping up to be an explanation of the problems photographers currently face; a lack of understanding of the value of copyright, publishers and news organisations using pictures from the internet as if it were a vast, free stock photo library for them to use as they wish, and the lack of any real sanctions for photographers who find their work being misappropriated. I explain that many of the exclusive deals I have with my clients will be rendered useless unless unscrupulous businesses and publishers are forced to accept that they have to pay for their own content just like everyone else.

It’s a short article this week, because I’ve still some work to do on my submission while also trying to get work done, so I’ll leave you with the tools you’ll need to get your own submissions written and in before the deadline. Why are you still here? GO!GO!GO! and write your submission now…

Hargreaves Call for Evidence.

How to submit responses.

Cover sheet (must accompany your response!)

Meet Mr Hargreaves.

Stop43 has a tonne of information for you.

No photo this week. I didn’t want it nicked…