I blogged yesterday about the “orphan works” section of the Enterprise and Regulatory Reform Act, and explained why I think it’s generally a good thing. Of course, not everyone agrees, and people are free to disagree if they want to. However, there’s disagreeing, and there’s misrepresenting. And some of the opposition to the change goes well beyond the former and into the latter.
Take, for example, this litany of complaints from industry lobby group Stop43. Go and have a read of it now, and see what you think. Then come back here and let me have my say.
OK, read it? Now, let’s take a look at some of what it says.
Normal copyright law as agreed in international copyright treaties, to which the UK is signatory, grants copyright owners ‘the exclusive right of authorizing the reproduction of [their] works, in any manner or form.’ Creators don’t have to apply for this right: it is theirs automatically and without formality. This means that unless it is used under one of the narrowly-defined Fair Dealing exceptions to copyright allowed by these treaties, it is illegal to exploit a copyright work without the permission of its owner.
Actually, it isn’t illegal. Copyright infringement, other than in certain limited circumstances, isn’t a criminal offence. It’s what, in law, is described as a “tort” – a civil wrong.
This may seem a minor point, but since we’re talking about the law here, I think it’s important to start with at least a reasonable grasp of what the law actually is. Anyway, on to the next paragraph:
The EAA Act changes all that. Under its provisions it will be legal to exploit a copyright work – photograph, film, text, song, whatever – without the knowledge or permission of, or payment to, its owner.
This is simply false, on several levels. For a start, the ERR Act doesn’t change “all that”, or even anything near it. It simply changes a very small part of it. But this paragraph is misleading in more ways that. Reading it, you’d get the impression that the government is allowing any copyright work to be exploited without the permission of its owner, even if the owner actually objects to them using it. And that is so far from the truth that I find it hard to believe that it’s simply hyperbole. This is a deliberate lie.
What the ERRA will actually allow is the limited exploitation of “orphan” works – that is, works which are subject to copyright, and therefore cannot normally be used without permission, but where the rights owner is unknown and therefore there is nobody to ask permission of. The vast majority of copyright works are not orphans. Most of those that are, are older material where ownership records have been lost in the mists of time.
Nor does the ERRA make it possible for a user to simply decide that a work is an orphan. It requires them to conduct a “diligent search” for the owner before reaching that conclusion. What that will mean in practice has yet to be decided (that’s the sort of thing which is normally left for case law), but it will almost certainly include checking with the various registries as well as doing a standard Google image search to see if the photo exists on a site which gives enough information about it to contact the owner. The implication of Stop43’s website is that this isn’t the case, and that organisations won’t have to make any effort at all to find the owner. This is simply untrue.
1. ‘…the government said the act made “copyright licensing more efficient”.’
Yes, if by ‘efficient’ you mean ‘no longer having to find, get permission from, and pay property owners before exploiting their property’. For almost any other kind of property, this idea would be outrageous. Imagine if this applied to cars, houses or bank accounts.
It means nothing of the sort. It means that, if you have tried your best to find the owner of a work, but fail, then you can still make some use of it rather than having to simply ignore it.
As it happens, that does also apply to physical property. Suppose you find a watch in the street. What the law requires is that you make a reasonable attempt to find the owner (eg, by handing it in to the police). But, if that fails, you are allowed to keep it. That’s actually more severe than the rights granted by the ERRA, as the right use an orphan work never removes that right from the actual owner. But if you find a watch in the street and the owner can’t be traced within a reasonable time, it’s yours for keeps.
2. ‘They are intended to help remove unnecessary barriers to the legitimate use of works while preserving the interests of rights holders.’
As we have said earlier, international copyright treaties grant copyright owners ‘the exclusive right of authorizing the reproduction of [their] works, in any manner or form.’ If this is an ‘unnecessary barrier to the legitimate use of works’, quite how are ‘the interests of rights holders’ being preserved by breaking it? The legitimate interests of foreign rights owners are certainly damaged and their rights breached by this Act.
It is true that international copyright treaties grant copyright owners “the exclusive right of authorizing the reproduction of [their] works”. But, on the other hand, the purpose of copyright itself is to benefit the consumer by ensuring that works are created. So if the two goals are in conflict, the latter prevails.
In any case, remember that we’re still talking about works where the owner of the copyright is unknown (I have to keep reminding us of that, because Stop43 want us to forget it). It’s hard to see how they are being harmed, therefore, by their works being used without permission.
Going back to the physical property analogy, I managed to lock myself out my house once, just 24 hours after I’d moved into it! I knew that the back door into the yard was unlocked, but I also had no way of getting to the yard other than by climbing over the wall from the neighbouring property. The problem with that is that it was being renovated, wasn’t occupied, and I had no idea who owned it (since I hadn’t seen them in the 24 hours that I’d been there). Legally, using their property without permission is trespass, just like using a photo without permission is copyright infringement (and, incidentally, trespass and copyright infringement have a lot of similarities in law). But I had no way to ask for permission. So what did I do?
I did what, I think, pretty much anyone in that position would do. I trespassed. I went into their yard and climbed over the wall. If you think that what I did was wrong then maybe you’ll also think that using intellectual property in similar circumstances is also wrong. But I suspect you don’t.
Anyway, back to Stop43:
3. ‘The powers do not remove copyright for photographs or any other works subject to copyright, nor do they allow anyone to use a copyright work without permission and free of charge.’
This is a standard bureaucratic statement which is technically correct but evades the real question and is misleading and inaccurate in its effect. It makes two points:
By “technically correct”, what they really mean is “correct”. And as for evading the question in order to mislead, well. An adage about pots and kettles comes to mind, except that in this case, the kettle still happens to be shiny and new.
a. ‘The powers do not remove copyright for photographs or any other works subject to copyright,’
Correct. We didn’t say they did. However, the powers breach copyright owners’ exclusive right of authorizing the reproduction of [their] works, because it will be legal to exploit the works without their owners’ knowledge, permission, or payment to them. The practical result is that the works are still in copyright but no longer enjoy the protection of copyright. And so, for these works, ‘copyright’ becomes worthless and meaningless.
You didn’t say they did, no. However, you most certainly implied it. But, again, remember that we’re only talking about works where the owners cannot be traced. I think it’s reasonable to argue (as, in fact, it would be argued in the case of physical property) that if the owner of something cannot be found then that should not necessarily prevent the property being used. After all, what benefit does the owner of an orphan work actually get from their copyright? They can’t earn any money from it, as nobody can find them to pay them.
b. ‘ …nor do they allow anyone to use a copyright work without permission and free of charge.’
Whose permission? Not the copyright owner’s. Who will be paid? Not the copyright owner, because by definition for an orphan work he cannot be found. The copyright owner will get no benefit whatsoever from the commercial exploitation of his work; work which was often made with high skill and at considerable difficulty and cost, in order to generate licensing income for its creator.
Yes, it’s true that the copyright owner will probably get no benefit from the exploitation of his work. But then, he wouldn’t have got any from the non-exploitation of it either.
Again, the implication here seems to be that people who would previously have got paid will, under the new legislation, not get paid. This is completely and utterly false. Someone who can’t be found can’t be paid. That is a simple fact, and no law can change that. So the choice isn’t between use with payment and use without payment. It’s between no use and no possibility of payment, or some use and a possibility, however remote, of payment (because the rights owner, if he becomes aware that his work is being used, will still be in a position to approach the user and negotiate a licence fee).
The final clause of that paragraph is also seriously misleading. As I said in my previous post, the reality is that photography is different to the other main “creative” arts in that it is one where humongous quantities of material are produced by people for no other reason than their own pleasure (or vanity). The overwhelming majority of photos are not taken by professionals. And very few contemporary professional photos are in any danger at all of being wrongly treated as orphan works. So to say that these works are “often made with high skill and at considerable difficulty and cost” is, frankly, bollocks. Some of them are, yes. But the ones which are are also those which will be very unlikely to end up orphaned. The vast majority of orphan works will be those created by amateurs or long-dead professionals (who are in no position to lose out anyway).
Some people complain that many orphan works were never made with commerce in mind, and because of that they ought to be free to exploit. This is a nonsense. If a work has sufficient value to make it exploitable, its owner ought to enjoy a fair whack of the proceeds as is his right under international law. If that work becomes newsworthy and of great value to media organisations (or advertising companies masquerading as tech companies and social media) it becomes a ‘lottery winner’. Why should the creator of the winning lottery ticket not collect his prize? He does in other lotteries.
Again, Stop43 fail to mention that, by definition, we are talking about works by people who cannot be found. Sure, it would be nice if they could be located and rewarded for the fact that people want to use their work. But simply wanting it to be so will not make it so. And yes, ideally the owner of a winning lottery ticket will collect their prize. But sometimes they don’t. And nobody would argue that, because the lottery winner can’t be traced, the money should simply be thrown away instead of being used for other things. But that is precisely what is being argued here by Stop43. If the owner of a copyright work can’t be found, and therefore can’t be paid for the right to use it, they would prefer that nobody gets any benefit from it rather than allowing it to be used for the benefit of the public. That kind of dog in the manger attitude is not only selfish and anti-social, it’s also at odds with the fundamental principles of copyright law itself.
Anyway, before we finish with Stop43, here are a few other things worth noting. Go to the home page of their website, and you’re greeted with this:
You think you own your own photographs? NOT FOR LONG.
The Enterprise and Regulatory Reform Act will allow anyone to exploit your photographs without your knowledge, permission, or payment to you.
It should be fairly obvious by now that this is false. It goes beyond false. It’s a deliberate, malicious lie.
While you’re there, though, have a look around the site. Try to find out who owns and runs the site. It’s surprisingly difficult. No names are mentioned, just the fact that the site is run by “a handful of activists“. A lot of organisations are mentioned, but if you read carefully you see that none of them have actually endorsed Stop43. (This “lie by implication” seems to be a bit of a habit of the site’s authors). There are no contact details other than an email address.
It’s difficult, therefore, to find out any more about the background of those behind the site. The domain name, stop43.org.uk, is registered to Editorial Photographers UK Ltd, but apparently this was done as a favour for the organisers several years ago and there’s no direct link between either EPUK or the postal address in the registration data.
Whoever is behind it, though, I find the deliberately deceptive tactics of Stop43 to be particularly unpalatable. Of course, there’s nothing new about this – copyright lobbyists from the music and movie industries have a track record of using misleading language in their attempts to protect their outdated business models, and it’s not really a surprise to find a photography group doing the same. But the reason it matters more here is because, unlike music and movies, nearly all of us are creators of photography as well as consumers of it.
Stop43’s campaign is clearly aimed at persuading the average Instagram user that the government has decided to nationalise all their photos, something which is – if believed – guaranteed to get them up in arms. The fact that this bears virtually no resemblance to reality isn’t going to be spotted by a typical social network user who is probably only dimly aware of copyright at all. So it’s a lot easier to whip up public hysteria over a change to the law which, in reality, will probably benefit amateur photographers (if it has any effect on them at all) rather than harm them. Nor will it hurt those professionals who take photos on commission, or news photographers. The only people who genuinely have anything to lose from the new law are those who make a living creating stock photography, as they will now be competing with a much larger body of freely usable material. But income from stock photography is already on the wane, as EPUK itself handily points out.
Like the music industry, professional photography is affected by technological and societal change. And it’s unrealistic to expect the law to stand still as the digital world revolves around it. The small, selfish minds behind Stop43, though, would like us all to believe that progress is a bad thing. And I think we have to nail that lie.
Edit: I’ve updated this article to remove the whois data for stop43.org.uk, as I now have it on good authority that the registered address has nothing at all to do with the Stop43 as an organisation. Obviously, it’s still out there for those who want to look it up, but as it’s not relevant to my article I don’t want to wrongly give the impression that those associated with the address are anything to do with Stop43.