UK Intellectual Property Office responds on ‘abolition of copyright’ law










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The UK Intellectual Property Office has issued a ‘myth-busting’ document about the effect on photographers of a newly-introduced law. The law includes new rules regulating the use of ‘orphan works’ – intellectual property whose copyright holder cannot be identified. This has led to concern that the changes will allow UK companies to use copyright material from anywhere in the world without the approval of the copyright holder.

The British Government’s stated intention is to create a mechanism for old works to be published and made available to the public, once it becomes unfeasible to establish the original owner (such as the documents in a museum’s collection). Critics suggest that the law allows companies to legally publish and profit from copyright work without the creator’s consent (with some suggesting it effectively abolishes copyright in the UK or allows internet companies to profit from images without metadata).

UK Tech Blog The Register has put forward one extreme perspective on the rules. Among its stated concerns:

  • Power will shift ‘away from citizens and towards large US corporations’.
  • The Act will permit ‘the widespread commercial exploitation’ of ‘most digital images on the Internet’.
  • Although you must perform a ‘diligent search’ for an image’s creator, ‘this is likely to come up with a blank’ and as such, ‘a user of a work can act as if they are the owner of the work […] if they’re given permission to do so by the Secretary of State’.
  • Once someone has obtained permission to use an ‘orphaned image’ they can then sub-license it.

The UK Intellectual Property Office’s document responds to many of its assertions – with a particular focus on the effects on photographers.

It points out that an independent body would have to verify every attempt to classify a work as an orphan work – including proof that a ‘diligent search’ has been made to identify the copyright holder before a license could be granted. It also points out that it will usually be easier to identify and pay for an alternative image where the author can be found, rather than going through the process of gaining an orphan work license.

Where has this come from?

The Enterprise and Regulatory Reform Act 2013, signed into law on April 25th, includes rules covering orphaned works. Similar rules had already been removed from an earlier bill, in response to complaints from photographers, who interpreted it as a rights grab.

The Act has now been published, and can be downloaded as a PDF (Section 77, on page 68 of the document). It takes the form of ‘enabling legislation’ – broad definitions of law that require the fine details to be added later (but without a parliamentary vote – a factor that has concerned some critics, including The Register).

The current law is a framework that specifies what considerations the final regulations must cover, such as who can qualify as a license granting body and where the money raised from such licenses will go. Viscount Younger of Leckie, Parliamentary Under Secretary of State at the Department for Business Innovation and Skills, has said there will be consultation to determine the fine details and that ‘the provision for orphan work licensing will be construed restrictively by the courts.’

The Royal Photographic Society and the British Copyright Council are among those meeting Viscount Younger in June to discuss these details.


Have you been following the debate about the Enterprise and Regulatory Reform Act in the UK? What do you think? Let us know in the comments.  








Comments


Slynky

These days, laws are (it seems) usually made to give more rights and leeway to the corporate world at the expense of the individual (who will never have the wherewithal to seek redress).

It’s simple really.

Citizens are commodities.


smafdy

The old law protected the creator of a work, just fine. If you didn’t “author” a work, you should NEVER be able to own the copyright without the permission of the author, regardless if you can find them, or not.

Corporatism, run amok. The middle class (US and Europe), had better wake up.


spodzone

OK, who’s up for embedding a pair of MP3s in their EXIF/IPTC and in the JPEG data (via steghide) as well?


Paul Tansley

In a perfect world, this new idea would work. It would be possible to check some central database of images – and cross check the ownership of every image ever published online. However, we don’t live in a perfect world. The technology just isn’t there yet.

I’m a professional photographer. I post an image on Facebook – I already know that there is a good chance that FB might share it with others. I watermark it and embed metadata into the image – starting my copyright. FB respects that copyright metadata on import. However, when someone shares that image, it strips it out – my first level of protection is lost. Next, someone crops out or retouches my watermark. Now the image has no identifier on it at all. So, when a business comes along and wants to use that image for their latest advertising campaign, some government body will try and track down the owner of the image – but they have no way of doing that anymore. It’s been stripped bare.

That’s the problem.


agentul

if you know how facebook works and still upload images there, the problem is not with facebook.

have you considered a diagonal watermark that cannot be cropped out? some newspaper websites do it so that you cannot copy their images and claim ownership.


Stu 5

agentul those have been known to be removed by skilled retouchers at newspapers.


agentul

well, i did not know that. in my line of work, we don’t freely share our products with anyone that is not involved in our projects. our promotional materials include descriptions and carefully selected samples of our work that cannot be used to recreate what we did. i can see that a photographer must have a portfolio in order to attract customers. however, i would not include in that portfolio anything that i would not consider expendable – certainly no images that i would want to sell.

maybe it’s just me, but when i want to buy a product or a service i like to be able to get information from an official website. having a company tell me “visit our facebook page to learn more” is an instant turn-off.


Revenant

“however, i would not include in that portfolio anything that i would not consider expendable – certainly no images that i would want to sell.”

I’d think that most photographers and artists would want their portfolio to show off their very best works, which usually are the same works that people would want to buy prints of.


ConanFuji

Warped sense of logic.


Greg Lovern

When wonderful old works, who’s current copyright holder can’t be located and may not even know that they inherited the copyright, can’t be published without risking multi-million dollar settlements, the culture is impoverished. That’s how it is today now that the copyright law pendulum has swing far, far over to the side of protecting creators.

It’s possible to provide reasonable protection to new creators without disappearing the works of wonderful old creators who’s current copyright holder can’t be found. But finding that balance requires that new creators be required to put some minimal effort into registering their works.

Works can be registered in aggregate, as in a large set of photographs or the entire contents of a magazine.


Greg Lovern

(Continued)

The requirement to register creative works to get copyright protection worked fine for a long time. The notion that copyright protection should never require the slightest effort of any kind on the part of the creator, and that it should last forever, is a recent invention that would startle the creators of 100 years ago.

At the turn of the 20th Century, creators got only 14 years of protection — IF they registered, with the option of another 14 years if they registered again during the 14th year. No one is arguing that we should go back to that, but the self-righteous expectation that absolutely no effort at all should be required is unreasonable and ultimately causes cultural amnesia about many wonderful old creators who can’t be republished without fear of multi-million dollar settlements.

Be reasonable. I register my works with the copyright office. I’m not excited about the fee but it didn’t kill me.


agentul

sir, i would give you more “likes” if i could.


Hen3ry

Greg, you are from the US where this has been the norm — but we in most of the rest of he world have NEVER had to register our works to gain copyright protection. I see your argument as twisted logic. Why should you have to register? What right has anyone to come along and just gather up our work and use it as their own? They know very well it is not.

We of the rest of the world have always been bemused by what we thought of as the ridiculous US requirement that copyright be registered.

And the fee might not kill you, but it might hurt many others.


agentul

Henry, the “rest of the world” has many types of laws. don’t just assume that what you have in your country is standard. i find it hard to believe that you can have automatic copyright protection without registering yourself as an artist or clearly marking your works. what substantiates your claims then?


JSWilson

Agentul,

copyright is automatically applied to any original photographic, musical, literary, artistic, dramatic or film work in the UK and, I might imagine, any Commonwealth countries that subscribe to the fundamentals of British law. There is no need to register for copyright in the UK. You’re right however, the rest of the world does have many types of law – don’t assume that yours is the be all and end all. Try Googling ‘uk copyright law’.


agentul

ok, but how is this copyright applied? if you take a picture, and you see another person claiming that it is theirs, how do you prove that you’re the copyright holder? it surely must be something more than one person’s word against another’s.


Hen3ry

Agentul, you don’t HAVE to substantiate your claim — the user of your work has to prove it is their work. Frivolous claims don’t get anywhere — it is too expensive for people to make them.

Further, I am aware that copyright exists in different forms in many places, but I think you will find that most have a default where copyright is automatically in the hands of the artist/author.

Try the French verson: https://en.wikipedia.org/wiki/Copyright_law_of_France


JSWilson

In my case I’d cite the original RAW/JPEG file, where the metadata shows me as the photographer and copyright holder, assuming that I programmed that information into the camera in the first place. Some people don’t bother to remove that data when reposting images, or they don’t even know it exists – there’s an awful lot of ignorance on the Internet. When I was using film I would obviously have the original negative in my catalogue. It’s not difficult to prove original ownership if you have taken the steps to clearly identify that ownership in the first place.


Stu 5

Greg Lovern you do realise that it will effect your works as well don’t you? If one of your photos pops up with no meta data attached then it becomes fair game in the UK to use it. A lot of pro photographers in America are very concerned about this new UK law.


agentul

jswilson, you are saying that you can easily prove ownership. another step might be to only post resized pictures on the internet. if you find someone using your image for profit, you can then take legal action. so how is this law that affects “orphaned” images affecting you? even if you find that someone has used your work for profit in the past 5 years, if you fail to settle and go to court wouldn’t you be awarded damages?


JSWilson

Agentul,

It shouldn’t affect me at all. Nor will it affect anyone who takes reasonable care to reduce the possibility of their work being stolen and/or becoming orphaned, whether by registering that work in the USA, by posting a copyright notice and maintaining metadata in the UK, or by posting small, watermarked and essentially useless images on the Internet. My original argument was with your assertion that copyright couldn’t apply automatically to photographers in certain parts of the world – it certainly does in the UK. And the provenance of an image can be easily ascertained, assuming you are the original artist.


agentul

ok, then. but there is still some due diligence required on the photographer’s part. just relying on the “automatic copyright” and taking no action to prevent theft doesn’t seem to work, from what you’re saying.


Gary Dean Mercer Clark

All digital files have published dates when they were created or posted. It would seem to me that a standard 20 years copyright date should be extended to so called orphaned photos may not be exploited by corporations. Just because you find an image that you can’t find the owner of doesn’t give you ANY rights to it.
You didn’t produce it. It isn’t your right to steal it and use it. Thats my thought on it. Want to use a so called ” orphaned photo?” if the right law protecting photographers was in place, you’d have to wait 20 years before you can exploit the ” Unknown” photographers. Corporations have no respect for individuals rights or property. Just because you find an image on the web–doesn’t mean you have ANY right to it.


agentul

ok, so i find a nice image, but can’t locate its owner. what do i do then?

the internet is a public place. messages posted in public forums, social networks and similar places are not protected by privacy laws – you can be arrested and prosecuted for what you say. what, then, makes anonimous photos so different that they have to be protected, no matter what? we’re not talking about pictures on someone’s portfolio website here. Greg Lovern posten an excellent point of view: if you want the law to protect you, you must also do something in this regard.

people need to really understand this: the internet is similar to any public place, legally. there’s no default privacy, no default copyright protection. just like, if you leave things on the street, you should have no reasonable expectation to find it after a few days.

if you don’t want people copying your images but you can’t be bothered to take measures that would legally protect you, don’t upload them anywhere!


Paul Tansley

Agentul – your attitude appears to read as, if I leave my bag on the street, then I no longer own it. How do you figure that? It’s still my bag. Whether I leave it there 1 minute or 4 days. You appear to want to live in a world where it’s a first to see the bag in an open space has the right to take it. Sorry, but many of us want to live in a world where people try and find the owner of the bag – and return it to them.

The idea that I have to tell people it’s my bag – before I lose it is absurd, as someone else said previously, I think you’ll find the USA is one of the few countries that operates that scheme. The UK certainly doesn’t and I don’t think you’ll find many other countries do either.


agentul

ok, try leaving a bag in a public place and see what happens then. these days you’re lucky if you don’t get arrested. this is the problem with westerners: they assume that everyone is as honest and rich as they are, so stealing is not even considered.

if you leave your items on public territory there are a number of entities that have a legal right to consider them abandoned and remove them after some time. let’s assume that it’s not a bag, it’s a painting. let’s also assume that no one actually wants to take it. if you leave it in central London, wouldn’t the sanitation workers remove it when they clean the streets? what exactly indicates that the item is not abandoned? do sanitation workers comb the city looking for the owners of every discarded object?

if you want to showcase your work you should do it properly. i have never heard of valuable paintings being exhibited unguarded in the street. even those horribly fake tourist-trap paintings are guarded by someone.


agentul

one more thing: all of the paintings that i’ve ever seen were signed. your assertion that you do not need to have any proof of authorship over your work until after you lose it is naive. not only that, but it also violates the principle of “innocent until proven guilty”. how are you able to prove that something has been stolen from you if you do not have any proof of ownership in the first place? isn’t that how the colonial empires managed to expand, by taking land away from people who were not able to properly claim ownership, relying only on their own common sense?


plevyadophy

This document is dumb. How on earth do you publish a so called “myth buster” document and “reassure” photographers when the Act is an “enabling” Act that requires the “fine details to be added later” and those fine details have yet to be added. In other words they are trying to reassure us our concerns are unwarranted when they haven’t actually yet proved it ………by filling in those so called “fine details”.

I for one don’t trust the Tories as far as I can throw them, and until I see this new Act in operation for a good 10 years or so I will be of the view that it is a stitch-up in favour of big business. Furthermore, recent legislation hasn’t had a good track record; with Acts coming into force supposedly to address a particular problem but then being used for a purpose for which they were not originally intended (or put more cynically, being used for purposes other than that which we were TOLD the intended purpose of the Act was e.g. ASBOs, Anti-Terrorism Act)


raincoat

OK, maybe if copyrights don’t keep getting extended to 1mill years after author’s death, you wouldn’t need this orphan works stuff.

Then if you really need an image, then either
1) you can pay someone to make it
2) it’s been out there for over 100yrs, reasonably assume it’s out of copyright

Yes I’m looking at you Mickey Mouse.


iamphil

But think of Walt! Think of his kids! They would starve if they had to sit around doing nothing while being unable to collect rent from something daddy did 80 years ago!


agentul

just look at Popeye! that’s a good example.


iamphil

Copyright laws that benefit large multi-national corporations at the expense of others? Say it ain’t so…


danieljcox

This is a horrific new law! See for yourself how easy your photos can become Orphan Works. Mine did.

Find out how it happened here: http://www.naturalexposures.com/corkboard/reuters-strips-all-metadata-from-your-photos/

You can see a whole host of related posts detailing the dangers of this new law in the UK and how the US is heading the same direction here: http://www.naturalexposures.com/corkboard/?s=reuters&x=19&y=12

Stop by and add your voice to the discussion here: http://www.naturalexposures.com/corkboard/uk-gov-passes-instagram-act-all-your-pics-belong-to-everyone-now/

We need to keep this fire burning so the US government thinks twice before making the same boneheaded move as the British have done.

Daniel J. Cox
www.naturalexposures.com

Source Article from http://www.dpreview.com/news/2013/05/08/UK-IPO-responds-to-myths-surrounding-uk-enterprice-and-regulatory-reform-act

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