Following on from IP Minister Lord Younger’s surprisingly candid admissions to the DCMS Committee that he is “very aware of [Google's] power”, that “[Google has] access, for whatever reason, at higher levels than me at No. 10” (at 11:15), and the somewhat unedifying sight (at 10:43) of IPO copyfighting mandarin Ed Quilty handing the Minister his lines, it is useful to look at the attitudes behind those lines.
Recently the IPO published a ‘myth and fact information document’ designed to dispel copyright ‘myths’ that have propagated on the Internet since the passing of the Enterprise and Regulatory Reform Act. Sadly, this document is itself so distorted by misrepresentations, evasions, half-truths, irrelevancies and omissions that it might be said that the IPO is acting with impropriety - as a government institution the IPO ought to be presenting the facts impartially and in a balanced manner, but their presentation unfortunately amounts to a twisting of the facts.
All copyright works including so-called ‘orphan works’ have a creator and owner, and our remarks assume you are the creator and owner of the ‘orphan work’ in question. So let’s dispel some myths.
IPO’s ‘Myth’ – the provisions remove the automatic right to copyright for owners of photos posted online
IPO ‘Fact’ – The powers do not remove copyright for photographs or any other works subject to copyright.
THE TRUTH: no one we know of has said that the provisions remove the automatic right to copyright. Rather, in undermining copyright as it is guaranteed by international law - your ‘exclusive right of authorizing the reproduction of [your] works, in any manner or form,’ and also undermining the fundamental principle in international law that 'the enjoyment and the exercise of these rights shall not be subject to any formality', the provisions attack the core value and meaning of your copyright. Copyright is your right to prevent your work being used without your permission. Now people will be able to use your work without your permission. Yes, your automatic right to copyright is still there – but it will no longer be copyright as we know it, as it is supposed to be guaranteed by international law, for you as an individual rights owner lacking the corporate resources to ensure that your works do not become orphaned.
IPO’s ‘Myth’ – anyone can use a photo they have found on the internet as an “orphan” if they cannot find the copyright owner after a search
IPO ‘Fact’ – A licence must be obtained to use a work as an “orphan”. This will require the applicant to undertake a diligent search, which will then need to be verified by the independent authorising body which the Government will appoint before a work can be used.
THE TRUTH: The IPO agrees with its so-called ‘myth’: anyone can use your photo they have found on the internet as an ‘orphan’ if they cannot find you after a search, and after being granted a licence by the government.
IPO’s ‘Myth’ – works will have their metadata stripped and be licensed en masse as orphans under the Extended Collective Licensing provisions
IPO’s ‘Fact’ – the Orphan Works scheme and Extended Collective Licensing (ECL) are separate and the orphan works scheme is about licensing of individual works.The Government will have no power to impose ECL on a sector, and the safeguards included in the scheme mean that ECL is only likely to be an option where there is strong existing support for collective licensing. Any rights holder who is worried about how their work could be used under an ECL scheme will always retain the ability to opt out.
THE TRUTH: Metadata stripping is irrelevant in this context. Such stripping is not necessary for licensing en masse under ECL, because the IPO’s ECL is intended eventually to allow any kind of work to be licensed en masse without your knowledge, permission, and payment to you, orphan or not, with or without metadata, unless you have opted it out of ECL or you are a member of the ECL licensing body, in which case for you the ECL becomes an ordinary collective licence.
IPO’s ‘Myth’ – anyone will be able to use my photos for free if they cannot find who owns them?
IPO’s ‘Fact’ – If a work is licensed following the verification of the diligent search, there will be a licence fee payable up-front for its use. The fee will be set at the going rate.
THE TRUTH: The government licensing body will receive a fee for licensing the exploitation of an orphan work. Despite the fact that a fee will have been paid to use the orphan work, it will then be exploited free of payment to you unless you discover the use, reclaim parentage of your work, and claim a portion of the orphan licence fee. Furthermore, there is no such thing as ‘the going rate’:
IPO’s ‘Myth’ – anyone can use my photos without my permission
IPO’s ‘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.
THE TRUTH: so that means that after going through the motions, ‘anyone can use my photos without my permission’.
IPO’s ‘Myth’ – the Act is the Instagram Act
IPO’s ‘Fact’ – Given the steps that must be taken before an orphan work can be copied, such as the diligent search, verification of the search and payment of a going rate fee, it is unlikely that the scheme will be attractive in circumstances where a substitute photograph is available. The rate payable for an orphan work will not undercut non-orphans.
THE TRUTH: the IPO appears not to have heard of the laws of supply and demand. How on earth will the government-regulated body know what you might have charged for a particular image? How can they assess its scarcity, its exclusivity value, or whether it should have been sold at all? They can’t. As it stands, the IPO intends ECL schemes to licence both orphan and non-orphan works. So, the statement ‘the rate payable for an orphan work will not undercut non-orphan works’ is irrelevant because the real market damage will be caused not by orphan works exploitation schemes but by ECL, which does not require a costly and time-consuming prior diligent search and subsequent verification, and is specifically intended to facilitate the exploitation of works en masse at minimal cost to the exploiter. A new, large, low-cost supply of images will inevitably reduce overall market prices, and with it income for rights owners. Why should an exploiter negotiate a primary licence with you if they can exploit your work very cheaply under a bulk ECL licence? A further point: without a prior search of some kind, how will ECL exploiters identify opted-out works? The IPO has told us that ECL of opted out works will be copyright infringement.
IPO’s ‘Myth’ – a company can take my work and then sub-license it without my knowledge, approval or any payment
IPO’s ‘Fact’ – The licences to use an orphan work will not allow sub-licensing.
THE TRUTH: There is nothing in the Act that prevents the regulations from allowing sub-licensing. Regulations in Statutory Instruments are easily changed. The first set of regulations may not allow it (we don’t actually know yet because draft regulations have not been published), but at some point, in a year or two or three or four, someone is likely to see this as a great commercial opportunity and have it introduced into the next set of regulations, or the one after that. All of the Nordic ECL legislation has rights owners’ safeguards such as this explicitly in the enabling Act, where they are visible to all and cannot be changed except by another Act of Parliament. The UK doesn’t. There is a reason for this, and that reason is almost certainly so that the safeguards can slowly be removed in subsequent revisions to the regulations.
IPO’s ‘Myth’ – the stripping of metadata creates an orphan work
IPO’s ‘Fact’ – the absence or removal of metadata does not in itself make a work “orphan” or allow its use under the orphan works scheme
THE TRUTH: the stripping of metadata is one of the key steps to disassociating a work from its owner. Unless there is another way of tracing you it creates a work that can then be declared an orphan work should someone want to use it without contacting you. Stripping of metadata has been carried on an industrial scale by the likes of the BBC. The IPO has on a number of occasions declared its mistaken belief that stripping of metadata is a criminal offence. It isn’t, which is why bodies such as the BBC have been able to get away with it. If the IPO can’t even get basic facts like this right, how can we trust them on understanding the more complex parts?
IPO’s ‘Myth’ – I will have to register my photos to claim copyright
IPO’s ‘Fact’ – Copyright will continue to be automatic and there is no need to register a work in order for it to enjoy copyright protection.
THE TRUTH: yes, and copyright – your right to stop people copying your work without your permission – will no longer exist as such from the individual author’s perspective. It will remain as the ghost of the right to say no only if whoever wants to use your work happens to be able to find you, and even then only if you have opted out of ECL. Will it be necessary to register your photos to claim copyright? Yes, if you want copyright in the old sense – you’re going to have to make your pictures readily searchable. There is an industry-led effort to create what will in effect act as a super-register called the Copyright Hub. If you want to have copyright in the old sense – the sense that we understand it, not the corpse, then you will have to register your images one way or another. The details have not yet been finalised.
IPO’s ‘Myth’ – the UK is doing something radical and unprecedented with the Orphan Works powers
IPO’s ‘Fact’ - Other jurisdictions already allow the use of orphan works. The UK powers are largely based on what happens in Canada – which has been licensing orphan works since 1990.
THE TRUTH: If the UK’s orphan works exploitation schemes are largely based on Canada’s they will most likely be little used, as are Canada’s, and therefore be of relatively little practical threat to most rights owners. In contrast, the UK is doing something radical and unprecedented with the ECL powers. How curious that the IPO chooses not to mention this.
At present no photographers' collecting society currently exists (for primary licensing - the DACS Payback scheme licenses only those secondary rights that photographers find it impractical to licence directly) and therefore ECL will not apply to photographs - for now. Stop43’s view is that photographs are so central to ECL plans and the desires of ECL’s intended users that one way or another this hurdle will in the fullness of time be overcome.
If you want to understand what orphan works and ECL are really all about, watch the excellent documentary Google and the World Brain. It explains beautifully what the copyright killers are trying to achieve.
Once upon a time we had the distinct and separate concepts of copyright and patent. In international, EU and UK law copyright defines artistic works as property and is a combined property, moral and human right of limited duration (usually 70 years after the author’s death) granted automatically, without formality and free of charge to creators of artistic works. In contrast, a patent is a monopoly exploitation right of short duration (usually 20 years after the issue of the patent) granted to the inventor of a new technological process or product after formal application to government, payment of a fee, and verification that the invention is indeed novel and not obvious. Both are property rights, but apart from that they could hardly be more different. DCMS was responsible for copyright; the Patents Office handled patents.
A while back it became trendy to lump both of these, plus design rights, trade marks, etc. under the umbrella of intellectual property, and the old Patents Office, full of experts on patents but knowing little of copyright, rebranded itself as the ‘Intellectual Property Office’. Creators, inventors and users of IP all complained of problems with the Copyright, Designs and Patents Act 1988, the UK’s copyright and patent law, and following the Digital Economy Bill Clause 43 debacle under the last Labour government the then Tory opposition said they would introduce a proper Intellectual Property Bill.
In late 2010 the coalition government announced the ‘Hargreaves Review’ into Intellectual Property and Growth, which recommended very significant changes to copyright, and a bit of tweaking to the patents system.
On Wednesday May 8th 2013 an Intellectual Property Bill was announced in the Queen’s Speech. According to the BBC, ‘This bill is designed to simplify patent and design protection laws. It will implement the Unified Patent Court, which will mean that a single patent application will be valid in almost all EU countries. The bill will introduce criminal penalties for breaching UK protected designs, and bring in measures to speed up the patent-application process. It will apply to the whole of the UK.’
Not a peep about copyright. What happened to it in the interim?
The changes to copyright were largely stuffed into an otherwise irrelevant portmanteau Bill which became the Enterprise and Regulatory Reform Act. The most important copyright clause enabling exploitation of orphan works and ECL was not added to this Bill until its Committee stage in the Commons, an unusually late stage at which to add an important clause. [After nine months of representations from rights owners and strong Ministerial pressure the IPO finally removed from the ERR Bill the other powers they really wanted, namely to be able via secondary legislation to change or introduce new copyright exceptions at will, before it became an Act.]
In comparison, the relatively minor changes Hargreaves recommended for other forms of IP are to have an entire Bill to themselves.
- The IPO failed in their ERR Act attempt to grab powers for themselves to make copyright exceptions. What do we think the chances are of a similar power grab returning in the IP Bill?
- Hargreaves, the British Library and the academic sector want contract law not to be able to override copyright exceptions. A clause to this effect is sure to be in the IP Bill.
- Clauses to introduce copyright exceptions which cannot be brought in under the European Communities Act 1972 2(2) are sure to be in the IP Bill.
Whatever happened to joined-up government? Why was copyright not dealt with along with the rest of IP in this Intellectual Property Bill, but instead shoehorned at the last minute into a Bill which otherwise had nothing to do with it? Why this shoddy, underhand and shameful treatment of copyright owners? Even copyfighter Martin Kretschmer, Director of CREATe and Professor of Intellectual Property Law at the University of Glasgow, has said: ‘Lastly, I also should put on record that I consider the legislative process of the ERR Act to be problematic (http://www.create.ac.uk/blog/2013/03/17/copyright-in-artistic-designs/). The first version of the ERR Bill (as introduced in May 2012) did not contain any Orphan works provisions at all, and I still do not think the appropriate scope of copyright exceptions should be a matter for secondary legislation.’
After the last three years of the copyright wars and the way things have ended up, smirkingly to introduce an Intellectual Property Bill adds insult to injury to anyone who ever makes an artistic work. It stinks.