Collapse of copyright
The Enterprise and Regulatory Reform Bill has received Royal Assent and is now causing an uproar in the professional photographer community. Kathrine Anker and Jade Price investigate the potential copyright issues we’re facing.
The Enterprise and Regulatory Reform Act is a huge piece of legislation created to improve Britain’s business sector, and most of the points in the Act are as important to photographers as the Littering from Vehicles Bill or the draft law to ban wild animals in circuses from 2015. But two thirds down the list of measures the ERRA will put into effect, it states: “For the first time orphan works will be licensed for use; these are copyrighted works for which the owner of the copyright is unknown or can’t be found. There will also be a system for extended collective licensing of copyright works.”
So without watermarks or proper metadata your images could be scooped up from the web via social media networks, app sharing, Google images or websites and used by anyone for any gain if your images can’t be traced back to you.
Unsurprisingly, photographers and others have expressed their outrage at this Act of Parliament. Photographer Paul Ellis, who founded stop43.org.uk, said: “What the ERRA does, beyond any dispute, is reverse the usual working of copyright. If you create an artistic work then you own it and it’s yours without formality, which means you don’t have to register it and tell anybody you’ve made it, it’s just yours. You have the right to authorise the copying of it. What the Bill has done is reverse this; now other people can exploit your photographs if you don’t take active steps to make sure that the ownership of your work is known.”
But some have pointed out that despite the ease with which anyone can strip an image of its metadata, most professional photographers will not be at risk of having their work ‘orphaned’ and used without consent and payment.
Photographer and blogger Benjamin Chesterton of Duckrabbit wrote: “We all know it’s as easy as a right click to steal images from the web. The real question photographers need to face when the Bill is enacted is how easy is it to trace me as the copyright holder of my images? Because if it is easy to trace the image back to you then it’s very difficult for someone to claim in court, or otherwise, that they’ve done a diligent search. That’s exactly what the law will require of individuals and companies before they exploit an orphan work.”
How diligent is ‘diligent’?
If the user of an orphan work can be held to account for how diligently or not they’ve searched for the owner before using their work, it follows that the significance of the ERRA to photographers is – at least in part – down the meaning of the word ‘diligent’. PP talked to an Intellectual Property Office Spokesperson, who confirmed that a diligent search will form part of the user terms for orphan works but didn’t have much detail to add. “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 spokesperson said. This authorising body has not yet been appointed.
We also spoke to the Head of Intellectual Property Law for Bircham Dyson Bell, Serena Tierney, who said: “We know that people will have to do a diligent search, but we don’t yet know what will count as a diligent search as the regulations haven’t yet come into effect.”
Serena added: “The way this particular Bill works is that it’s an enabling piece of legislation, which means that in most cases it doesn’t directly make the changes itself. What it does is it gives the Secretary of State the power to make the changes. They then make another piece of legislation which is called a statutory instrument, and that’s actually what brings the changes into effect. At the moment we’re expecting eight statutory instruments over the course of this year and into the beginning of next year on topics like exactly how orphan works will work and how extended collective licensing will work. Photographers should make sure their voices are getting heard in and around the negotiations around the regulations.”
The exact procedure and payment for orphan works is another issue that still needs to be clarified. Serena said: “What we understand so far is that if somebody says they’ve done a diligent search and that they can’t find the author and therefore the work they want to use is an orphan, then they have to apply to a collective licensing agency that the government will set up – or profit from themselves, we don’t know yet. The user will have to ask for a license to use the orphaned work, and that body will say ‘yes it will cost 33p’. So you pay the 33p to the body and if the author discovers that their work has been used as an orphan and wants to claim the money, we don’t know if they’ll get that full 33p or if they’ll get a deduction for administration.”
How photographers should protect their work
Given that most photographers’ work can easily be traced back to them, their images will not turn into orphan works and it might prove counterproductive to start taking down images from websites and social media outlets. Consistent branding across all online outlets, which is always advisable, could become your best way of safeguarding your copyright should you end up having to take an unauthorised user of your work to court.
Paul and Serena both recommend that photographers fill their images with metadata. Paul said: “You can start by copyrighting your name, phone number and ID into your camera. All DSLRs can do that via the software from the camera manufacturer. After that get a paid plussregistry.org registration, then choose your most valuable images and register them. It’s not available yet but keep an eye on the Copyright Hub and take advantage of anything it offers. Then watermark the damn things. When people complain, tell them why you have been forced to watermark your images.”
Should we still share?
What does the ERRA mean for companies bringing out photo sharing apps at this time? We spoke to Joe McNamara, Senior Account Executive from EML Wildfire who has just created the app NeroKwik designed for photo sharing. “While we feel that the changes in regulations may cause people to think more carefully before sharing professional and creative work, content such as personal photos from holidays and social events will continue to make up a large proportion of the photographs shared on social networks. But as for content that users may wish to be more cautious with, images are never attached or moved with NeroKwik. The links go directly to Nero’s web portal where the content can be viewed but not downloaded. “In terms of whether a reluctance to use sharing features will weaken sales of NeroKwik this app helps users manage their photos too, so it provides other benefits than allowing people to share personal photos on social networks and across devices. NeroKwik also allows private sharing between friends via channels such as email or text, so users can share content with friends, but not the world.”
SmugMug has recently announced that it will not wipe any metadata from images and endeavours to help protect them against the orphaned copyright advantage-takers. Read the full story here.
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