stop43.org.uk

Back to Business As Usual

stop43.org.uk@me.com — 2010-11-28T13:00:00+00:00

Stop43 enjoyed taking the summer off from campaigning and getting back to paying our mortgages and leading our usual lives. Still, nothing lasts for ever and we’re back to Business as Usual.

Last May we were informed by Culture Minister Ed Vaizey’s office that an Intellectual Property Review would be commissioned in the Autumn. We also knew of an impending EU Directive on Orphan Works, so we fully expected the well-funded advocates of commercial orphan works usage and Extended Collective Licensing to maintain their pressure. We haven’t been disappointed.

The EU Directive is due Any Day Now, and appears to have precipitated a rush by copyright interests to get their ducks in a line. First off the blocks was the British Copyright Council’s apparent attempt to gull a meeting of the British Photographic Council into rubber-stamping its draft proposal on orphan works, which in a reprise of Groundhog Day reads like Son Of Clause 43. The Russian Photos Blog details the whole convoluted story, which continues at the BJP.

That leads us onto the next interesting development. Speaking to the BJP, John Toner, Freelance Organiser for the National Union of Journalists and a representative of the British Photographic Council, says that within the BPC “...there is no enthusiasm for the BCC’s proposal as it stands, and we are seeking to add some conditions to it.” Toner adds:

"The most important of these is that we wish to see major improvements in moral rights as a precondition for any legislation on orphan works. Moral rights legislation in the UK is notoriously weak, and we consider it an absurdity that orphan works legislation is being proposed without such an improvement. Unless authors’ rights to accreditation are strengthened the number of orphan works will continue to grow."

Note the use of the word “precondition”, which also appears to accord with official NUJ policy.

Thinking of matters international we’ve always wondered about this upcoming EU Directive - the EU Big Stick. It is always presented as a threat. In many ways the EU has much better copyright law, which is far more protective of authors' rights, than the UK. It also appears from everything we have read that the EU conception of Orphan Rights with or without Extended Collective Licensing is far more limited to genuine cultural purpose than the free-for-all the BCC appears to wish to impose.

It is entirely possible that being panicked into accepting whatever the IPO have dreamed up in the past few months could well be a lot worse for creators than what comes down the pipe from Europe. Conversely, the sudden pressure to Do Something could indicate that what the EU proposes would be worse for publishers and others seeking to bypass our copyright. We don’t know, and those that do aren’t telling.

Then there is the joint BBC/JISC/National Archives/British Library/BFI "Digital Public Space" initiative, which first surfaced on November 1st 2010 in a Guardian interview with Tony Ageh, Controller of Development for the BBC Archive project. As described by JISC it is intended to

"...deal with the largest barrier to mass digitisation, that of copyright. The DPS would be constructed as a secure, trusted space for high-quality content. Copyright material would be made freely available to the public, but access would be via authentication and delivered via universities, libraries, schools etc. and, if federated infrastructure develops suitably, to individuals. At the same time, the DPS would offer costed access to commercial users wishing to exploit the goldmine of content. The costs would be used to pay back the rights holders and sustain the DPS."

“Goldmine of content.” Mmm. Whose gold, and who is mining it?

Sound familiar? It does to us - it sounds remarkably similar to Stop43's National Cultural Archive proposal, first made public on the 18th May 2010. At first glance it looks like a great idea - until one realises that no explicit mention is made of orphan works, that it essentially amounts to a joint shopfront for the existing archives of large cultural institutions, and that it does nothing to stimulate one-to-one licensing between creators, rights holders and prospective users.

In contrast, the NCA would be open to anyone to join provided they met the criteria, and as well as fulfilling the Digital Public Space's cultural rôle would develop into a new low-level digital IP marketplace. To us the DPS looks to be a bit of a Trojan - a worthy-looking project created primarily to justify new Clause 43-like orphan works legislation. It would clearly require some form of Extended Collective Licensing in order to work.

Moving swiftly onwards, an article has appeared on the Guardian Website written by one Stephen Edwards, who turns out to be a practicing copyright lawyer with a stable of media company clients and who previously was Head of Copyright at the BBC, although in an unseemly breach of journalistic ethics he managed to omit reference to his interests in the article.

In his article he asserts that the public is now missing out on being able to see interminable repeats of old telly because the photographers threw out Clause 43, a problem that a simple little Bill restoring orphan works and extended collective licensing would soon sort out.

The Guardian article sparked off a lively discussion in its Comments thread in which several posters in favour of the article’s proposition were stoutly rebutted by clued-up photographers.

And therein lies the change. Photographers have woken up and are no longer leaving it to those who insist they know best how to sort out copyright in our interests. We’re organised and alert, and ready to engage with proponents of commercial orphan works usage wherever and whenever they pop up. We’ve also devised our own proposal, currently being polished for submission to Professor Ian Hargreaves’ Intellectual Property Review.

Stop43 have been busy making new friends. We have been approached by members of the Cultural Heritage Sector who not only think our proposal a Jolly Good Idea that pretty well satisfies their practical requirements, but are also keen to help us. They’ve joined in.

And so, arm in arm, this week we followed the Yellow Brick Road to the British Library to meet their Head of Intellectual Property only to discover that photographers’ lack of automatic, inalienable moral rights is a big problem for them, too, and that they would like UK law changed to enshrine them. It seems that photographers and the cultural sector are not so far apart after all. We parted agreeing to continue our discussion as soon as possible.

There have been other interesting shenanigans:

A leading copyright expert and ECL enthusiast at the NUJ has been patronisingly dismissive of Stop43’s successful campaign;
our New Thinking proposal has been so misrepresented as to be almost inverted by JISC - it’s all in our new FAQ;
the French have set about introducing orphan works legislation pertaining specifically to images;
and then there’s Google;
and then there’s Google;
and then there’s Google, again. This makes fascinating reading. The pillow talk in the Hilton/Whetstone household must indeed be quite something. What is Google if not The Vacuum Cleaner At The End Of The Universe?

Back to Business As Usual.

The end of SABIP

stop43.org.uk@me.com — 2010-07-19T19:15:00+01:00

On 19 July the Department for Business, Innovation and Skills announced changes in order to streamline its partner organizations by reducing the number of 'Arm's Length Bodies'. This includes the dissolution of the Strategic Advisory Board for Intellectual Property Policy (SABIP).

Evidently, BIS and the Department for Culture, Media and Sport agreed with our assessment of SABIP that as constituted it was not at all “independent”, existed in practice only to provide apparent legitimacy to the previous Government's Intellectual Property policies, and that its £750,000 annual budget could be better spent elsewhere.

Its reports were vacuous, based on questionable methodology, notably light on meaningful statistics, and in the main simply pleaded for further research to be carried out. A true QUANGO, then, primarily engaged in perpetuating itself and its “work”.

Stop43 does not mourn its passing.

Stopping the supertanker

stop43.org.uk@me.com — 2010-05-28T23:00:00+01:00

Famously, because of their sheer mass and momentum, supertankers take a very long time to stop or change direction. Equally famously, they can cause appalling environmental pollution. Collectively, Clause 43’s proponents closely resemble a supertanker.

On the 19th of March, the British Library issued a press release triumphantly publicising its new relationship with brightsolid, owners of Friends Reunited and commercialisers of 1901 and 1911 UK Census data:

“The British Library's Chief Executive, Dame Lynne Brindley, will today announce a major new partnership between the Library and online publisher brightsolid... The ten-year agreement will deliver the most significant mass digitisation of newspapers the UK has ever seen: up to 40 million historic pages from the national newspaper collection will be digitised.”

“brightsolid is taking on the commercial and technical risks of the project, with no direct costs to the British Library. The firm will digitise content from the British Library Newspaper Library, which it will then make available online via a paid-for website as well as integrating it into its family history websites.”

Let’s just note that use of the word “commercial” for a moment. brightsolid continue:

"We're also closely linked to the publishing community through our parent company, DC Thomson and we very much see this project as a collaboration with the industry. In fact we are already in dialogue with some rightsholders and expect this to continue throughout the project.”

Unfortunately that dialogue doesn’t appear to include James Murdoch, Chairman and Chief Executive of News Corporation. The British Library press release continues:

“Along with out-of-copyright material from the newspaper archive - defined in this context as pre-1900 newspaper material - the partnership will also seek to digitise a range of in-copyright material, with the agreement of the relevant rightsholders. This copyright material will, with the express permission of the publishers, be made available via the online resource - providing fuller coverage for users and a much-needed revenue stream for the rightsholders.”

Mr. Murdoch doesn’t seem to be terribly keen on this:

“Take the current controversy over the Library’s intention to provide unrestricted access to digital material. Material that publishers originally produced – and continue to make available – for commercial reasons. Like the search business, but motivated by different concerns, the public sector interest is to distribute content for near zero cost – harming the market in so doing, and then justifying increased subsidies to make up for the damage it has inflicted.

The case of the British Library goes even further. Just yesterday, the Library announced the digitisation of their newspaper archive – originally given to them by publishers as a matter of legal obligation. This is not simply being done for posterity, nor to make free access for library users easier, but also for commercial gain via a paid-for website. The move is strongly opposed by major publishers. If it goes ahead, free content would not only be a justification for more funding, but actually become a source of funds for a public body."

To recap, the British Library intend to digitise in-copyright newspaper pages and make them publicly available. Everyone involved appears to forget that a typical newspaper page embodies multiple copyrights: the layout, text and photographs created by the publisher’s employees are the publisher’s copyright, but text and photographs syndicated or licensed from freelancers or agencies remain the copyright of their creators and rights holders. The publishers of said newspapers would not be the copyright holder - they are a licensee but not the licensor. Single use rights would have been assigned to the newspaper for the printed edition and payment made on that basis, so any further use, including digitisation, would require a broader and more expensive license.

We would question whether the publishers of the newspapers had acquired the rights to sub-license creative works for such a project.

James Murdoch, again:

“A public body like the British Library, for example, is not driven by a bottom line. But as an organisation, the Library has a clear incentive to extend the range of its services as widely as possible and thus secure more public funding to do so. This is a circular process: funding drives new activity, which creates more requests for funding; popularity makes demands on the public purse easier to bear.”

The Google Books Settlement came about because Google unilaterally set about scanning millions of books, wafted along by naïve euphoria from freetards, and in breach of copyright law. They're now so big and have such a stockpile of scanned books that they're almost an immovable object. Big Culture have watched this happen and wish to play the same game. In fact they're already a good way along that road, implementing plans drawn up and negotiated while the Digital Economy Bill was still in gestation, based on the assumption that Clause 43’s provisions for so-called Orphan Works Licensing and Extended Collective Licensing would by now be law.

Stop43 doesn’t object to digitisation to preserve Intellectual Property - in fact in our New Thinking proposal we advocate changes in copyright law to properly legalise it. We do object to its subsequent commercialisation without reference or recompense to us - creators. This British Library project does exactly what we object to.

The BBC has also been busy. They seem very keen to talk down copyright, talk up so-called “orphan works” usage, and to loudly complain about how rights holders prevent the BBC from doing what they want.

Dame Lynne Brindley also figures in an earlier press release: “Dame Lynne Brindley DBE, Chief Executive of the British Library, appointed to Strategic Advisory Board for Intellectual Property (SABIP)”, whose remit is to "Provide Government with Independent, Strategic, Evidence-Based Advice on Intellectual Property Policy”.

SABIP’s report on The Economics of Copyright and Digitisation was published on 26 May 2010. The Executive Summary document itself contains no real information or facts and figures, just assertions. It poses questions but gives no real answers other than to direct the reader towards certain conclusions. SABIP's report offers implied solutions to the unstated problems and a distinct leaning towards Extended Collective Licensing as a way of easing the administrative burden whilst consistently ignoring the fact that they are dealing with other people's property.

Nowhere does the report appear to consider how independent freelance expert creators might develop and sustain their expertise if they are deprived of copyright of their works and income from their use. The report seems to us to be a way of bringing in Extended Collective Licensing and justifying the British Library exercise at the same time. Unsurprisingly, given that SABIP is a quango, the report pleads for further research to be carried out.

We note that SABIP's Board appears currently to consist of Dame Lynne Brindley, a career civil servant, a business consultant, a solicitor and what appear to be the heads of a regional quango and an investment company. The quangocracy laid bare, indeed. No-one involved appears ever to have spent any substantial part of their careers as independent creators of Intellectual Property, living on the proceeds of licensing their creations, or founded and run a company doing the same. Current, active, freelance creators of Intellectual Property are notably absent.

In the course of her career, Dame Lynne’s only foray beyond the groves of Academe and the public sector appears to have been a spell consulting for KPMG. SABIP is entirely composed of salaried, career academics and administrators, as are their secretariat and advisory staff.

We wonder how it might be that a supposedly independent advisory board influencing Intellectual Property policy should contain the Chief Executive of an organisation, namely the British Library, that directly stands to gain from policy recommended by that board. To us that appears to be an irreconcilable conflict of interest.

SABIP appears already to have been caught “sexing up” figures for the number of illegal downloaders of copyright works, perhaps unsurprisingly when SABIP’s advisory staff includes Shira Perlmutter, the International Federation of the Phonographic Industry (IFPI)’s Executive Vice President for Global Legal Policy.

We conclude that SABIP as currently constituted is not at all “independent” and exists in practice to provide apparent legitimacy to the previous Government's Intellectual Property policies. It costs nearly £3/4 million p.a. to run. We recommend that it be dissolved or reconstituted to be properly independent, balanced, and include active independent creatives.

Based on the above we fear that the previous Government's Intellectual Property supertanker has not even changed direction, let alone been stopped, by the failure of Digital Economy Bill Clause 43, the change of Government, and its new policies. We wonder what the Intellectual Property Office are doing at the moment (apart from laughably running events advising on how to protect your intellectual property): given that the British Library is the IPO’s official library and that two IPO executives sit ex officio on SABIP’s Board, we cannot conceive that the IPO were unaware of the British Library’s potentially lawbreaking agreement with brightsolid. The IPO has a reputation for being antagonistic towards individually-owned copyright.

And finally... The EU intends to introduce a Directive on orphan works in the Autumn. It’s going to be a busy Summer, stopping that supertanker and preventing it from fouling our creative ecosystem with its spilled oil.

The New Thinking: a proposal to replace Clause 43

stop43.org.uk@me.com — 2010-05-18T23:45:00+01:00

Since the completion of our successful campaign to remove Clause 43 from the Digital Economy Bill, Stop43 have not been idle.

Clause 43’s provisions were and continue to be ardently desired by many sections of “the creative industries” and others, not least because they stood to make or save a great deal of money from using our so-called orphan works. Consequently, our efforts continue to replace the inequitable and unworkable proposals contained in the failed Clause 43 with New Thinking, which we believe should benefit everyone.

HERE IT IS.

“We propose to allow “cultural use” of so-called orphan works and for this cultural use to switch all other uses and users to “known” works, to stimulate cultural and economic activity to the benefit of everyone.

To enable this we propose some changes to current copyright law and the establishment of a National Cultural Archive, which must be free to use.”

READ MORE...

This proposal was first presented at the 2nd National Photography Symposium on 8th May 2010. At the end of the presentation a vote was called, asking the audience if they supported the proposal in principle. They expressed almost unanimous support.

When evaluating this proposal, please do not focus on single points out of context. This proposal is a system. Please ensure that you have grasped its systemic nature before evaluating it. Constructive criticism on this basis is welcome; the proposal needs any weaknesses identifying and rectifying.

This is the first draft of a work in progress. A PDF version is now available (8.5MB). We invite positive criticism, comment and help, and a mailing list to facilitate this will also be available shortly.

VOTE! But for whom?

stop43.org.uk@me.com — 2010-05-06T10:15:00+01:00

Individual MPs of all parties varied in their position from outright support of us, to indifference, to hostility. This is how they voted.

At the Second Reading, Labour policy was in favour of the entire Bill; Tory policy was in favour of the Bill with Clause 43 removed; Liberal Democrats wanted to retain and amend Clause 43 by limiting use of "orphan" photographs to those made before 1950 and removing photography from any Extended Collective Licensing schemes, but were also against passing the whole Bill in the washup process, wanting it to be deferred to the new Parliament.

By the time of the vote, Labour had moved to remove Clause 43 and both they and the Tories were in favour of the remainder. The Liberal Democrat amendment vanished with Clause 43 and they voted against the Bill. The Bill became an Act without Clause 43.

Clause 43 was removed from the Bill in back-room dealing quid pro quo for Tory support of other clauses. This is why the Government introduced the amendment to remove it, and why the following day Stephen Timms wrote to Frank Dobson that "legislation along similar lines would be introduced in the new Parliament":

The Floating Voter

stop43.org.uk@me.com — 2010-05-02T17:45:00+01:00

Some people just can’t make up their minds. At first, this girl seems to be a confirmed DUP voter:

But later, she appears to change her mind and support the Conservatives & Unionists instead:

That’s assuming, however, that she is actually eligible to vote in the forthcoming UK General Election because she might be Californian, or even French. Such are the dangers inherent in using microstock photographs.

UPDATE: The photographs used in these posters were shot by Peter Chen. Although they are model-released, their use in political advertising is in breach of iStockPhoto’s terms and conditions, which state:

3. Permitted Standard License Uses

(a) You may only use the Content for those advertising, promotional and other specified purposes which are Permitted Uses (as defined below).

4. Standard License Prohibitions

(a) Prohibited Uses. You may not do anything with the Content that is not expressly permitted in the preceding section or permitted by an Extended License. For greater certainty, the following are “Prohibited Uses” and you may not:

7. use or display any Content that features a model or person in a manner (a) that would lead a reasonable person to think that such person uses or personally endorses any business, product, service, cause, association or other endeavour”

Sadly, we see here yet more abuse of copyright and misrepresentation of people in photographs, to accompany these examples:

The background image in all of the above posters is owned by Kudos Film & Television, who have stated to us that they have not licensed it to anyone for political advertising purposes.

Proposals for “orphan works licensing” in Clause 43 of the Digital Economy Bill, which in its dying days the last Government declared its intention to revive, would have allowed any Political Party to use almost anyone’s picture for this political avertising purpose, whether or not the individual depicted agrees with that Party’s policies, and thereby misrepresent them.

The Photography Markets

stop43.org.uk@me.com — 2010-05-03T20:45:00+01:00

Introduction

It is our concern that if appropriate legislation regulating digital copyright is to be drafted, it is first necessary to properly understand the varied markets for photography and their characteristic subcultures. Here is a contribution from photographers on this subject - one with which we are intimately familiar.

First, let us list the different genres (the subject matter or “content”) of photographs and the markets in which they are licensed.

Genres include:

• Portraits, Weddings & Social
• Landscape
• Wildlife & Nature
• Sports
• News, Documentary & Reportage
• Interiors
• Architecture
• Still Life
• Lifestyle
• Fashion
• Cars, Aviation & Transport

The difficulty and cost of creating images within and between genres varies widely. For example, anyone attending a public airshow can easily shoot pictures of aircraft from the ground for the price of the entry ticket. Photographing the same aircraft air-to-air from another is a far more demanding and costly affair.

Markets for photographs include:

• Social and weddings (private commissions)
• Fine Art
• Editorial
• Public Relations (PR)
• Corporate
• Advertising

"Stock photography" is not itself a market, but a means of supplying photography markets with pre-existing images. Similarly, photographic competitions are not a market, but are increasingly used by unscrupulous organisers imposing rights-grabbing entry terms to acquire libraries of stock photographs for commercial re-use at little cost to themselves.

Images with near-identical content are commissioned, created, valued, licensed and used very differently in different markets. With the exception of the Public Relations and Corporate markets, which overlap somewhat, it is highly misleading to assume that what prevails in one market is also true for others.

Few photographers are professionally active in all genres and markets. Most operate in multiple genres but only a few markets; others specialise in one or two genres but operate in multiple markets; the best-known photographers usually specialise in one or two genres and markets.

Each market for photography has its own distinct subculture based on its combination of the following factors:

• The Supplier/Client Ratio
• The Commissioning process
• The Creation and Production Process
• The Valuation Process
• The Licensing Process, including the prevalence of unfair contract terms and rights-grabs
• Usage, particularly usage restrictions, exclusivity, privacy, and whether the photograph will be subject to End Use or Further Use
• The proper functioning or failure of the market according to orthodox free-market theory.

SOCIAL & WEDDINGS

• The Supplier/Client Ratio: all parts of the market are well-balanced with many suppliers servicing many clients. Both sides of the market overwhelmingly comprise individuals or microbusinesses.
• The Commissioning process: private commissions. As such, images are private and no other use can legally be made of them without the consent of both the copyright holder (usually the photographer) and the commissioner. One of the great problem areas for any so-called “orphan works licensing” scheme.
• The Creation and Production Process: varies from available-light “reportage” to full-blown lit location and studio work at the high end of the market.
• The Valuation Process: fees negotiated directly between client and supplier. Many suppliers offer a tariff; the properly competitive nature of the market enables clients and suppliers easily to match quality, style, deliverables and fee to mutual satisfaction.
• The Licensing Process: photographers automatically retain copyright. Images are licensed for private use.
• Usage: images are used for private purposes. Deliverables tend to be photographic prints or wedding albums. These are traditionally End Uses. There is a recent trend towards the supply of accompanying digital media, which can result in unintended and unauthorised Further Use.
• This market functions well according to orthodox free-market theory.

FINE ART

• The Supplier/Client Ratio: all parts of the market are well-balanced with many suppliers servicing many clients. Both sides of the market mostly comprise private individuals or microbusinesses; galleries sell prints to the public on behalf of photographers; some large cultural institutions collect photographs.
• The Commissioning process: self-commissioned or, less frequently, private commissions. Images are private and no other use can legally be made of them without the consent of both the copyright holder (usually the photographer) and the commissioner. One of the great problem areas for any so-called “orphan works licensing” scheme.
• The Creation and Production Process: the entire range of production methods and processes is represented. Prints are usually unique or produced in limited editions. Verifiable documented proof of provenance is of paramount importance.
• The Valuation Process: fees negotiated directly between client and supplier. Valuations range from a few tens of pounds to tens of thousands - another of the great problem areas for any so-called “orphan works licensing” scheme.
• The Licensing Process: photographers automatically retain copyright. Images are licensed for private use and public display.
• Usage: images are collected and displayed for private, cultural and investment purposes. Deliverables tend to be photographic prints. These are traditionally End Uses. There is a recent trend towards the supply of accompanying digital media, which can result in unintended and unauthorised Further Use.
• This market functions well according to orthodox free-market theory.

EDITORIAL

• The Supplier/Client Ratio: most parts of the market are oligopolistic, characterised by high concentration and grossly unbalanced with a great many suppliers competing to supply relatively few clients. The supply side of the market overwhelmingly comprises amateur, semi-professional and professional individuals or microbusinesses; clients mostly consist of large corporate media combines.
• The Commissioning process: members of the public freely supply images for no fee, sometimes in return for a “byline” or credit; freelance professionals and microbusinesses supply “on spec”, sometimes at their own rates but usually at rates dictated by the client; clients also directly commission work from photographers or their agents. Clients usually use their market dominance to dictate terms. Picture Agencies and Stock Libraries also supply clients, often via commodity “subscription deals” in which the client is licensed to use a fixed number of images per day, week or month for an inclusive fixed fee.
• The Creation and Production Process: the entire range of production methods and processes is represented.
• The Valuation Process: clients usually use their market dominance to dictate fee levels, which are usually imposed on suppliers (“day rates”, “shift rates” and newspaper “space rates” are prime examples) although direct negotiation between supplier and client can occur, depending on an image’s perceived exclusivity and commercial value to the client. The Base Usage Rate method is sometimes used at the top of the market. Valuations range from free use to tens of thousands of pounds - another of the great problem areas for any so-called “orphan works licensing” scheme.
• The Licensing Process: photographers automatically retain copyright but there is an increasing trend by clients towards rights-grabbing, usually for little or no extra fee beyond that for traditional limited editorial use. Book and magazine publishers are notorious for imposing onerous rights-grabbing contracts on suppliers, often also demanding that the supplier indemnify the publisher against the costs of potential unknown and unpredictable legal action as a result of publication over which the supplier has no control. Clients often insist that Internet use be included for no extra fee, or for a nominal fee increase. Newspaper and magazine publishers routinely publish images without offering payment to their owners, marking the use as “await invoice”, in the clear expectation that many such uses will go unnoticed and unchallenged, and thereby reduce licensing costs. Few other industries systematically defraud their suppliers in this way.
• Usage: images are used in a non-advertising editorial context to illustrate books, magazines and newspapers, on commercial websites, in other media, and in an “educational” context. Licences are usually valid for a limited timespan, although the trend towards clients “wholly-owning” the work (as a consequence of their imposition of rights-grabbing contracts) is rapidly changing this custom. Deliverables are usually digital media and represent Further Use in that publishers will then use the digital media commercially in a multitude of ways to generate revenue for themselves. Along with social media websites, publishers and broadcasters are the main generators of so-called “orphan” photographs, usually by failing to credit the photographer and employing website systems that strip identifying IPTC metadata from the digital image files as they are uploaded. As an example, the BBC alone daily “orphans” hundreds of images in this way. Their behaviour is quite usual.
• Because of this market’s externalities, distortions and gross imbalance of power and competition between suppliers and clients, this is mostly a failed market according to orthodox free-market theory and can only be made to operate satisfactorily for suppliers by rectification of the deficiencies in current UK copyright law, inalienable Moral Rights for photographers and the extension of Fair Contract law to include Intellectual Property.

PUBLIC RELATIONS

• The Supplier/Client Ratio: many suppliers service fewer clients, but the market is not grossly unbalanced. Suppliers overwhelmingly comprise freelance professionals or microbusinesses; clients range from small PR agencies through to large corporations, charities and public bodies.
• The Commissioning process: PR agencies or corporate PR departments make direct contact with photographers or their agents to commission pictures.
• The Creation and Production Process: the entire range of production methods and processes is represented, but many news photographers and photojournalists also undertake PR work, sometimes using lights and assistants, often unassisted and using available light or on-camera flash. PR work is often viewed as commodity photography, with little opportunity for the photographer to offer personal style and with it, scarcity value and higher rates.
• The Valuation Process: fees negotiated directly between client and supplier. “Market” hourly, half-daily and day-rates predominate. In the extreme upper end of the market fees are based on the commercial value of the image to the client and the Base Usage Rate system is occasionally used.
• The Licensing Process: most clients tend to have little grasp of copyright. Photographers automatically retain copyright but there is an increasing trend by clients towards rights-grabbing, usually for little or no extra fee beyond that for traditional limited PR use. Clients often insist that Internet use be included for no extra fee, or for a nominal fee increase. High-end clients tend to have a reasonable grasp of copyright and limited use.
• Usage: Images are licensed for further free supply to publishers and others to illustrate articles favourable to the end-user client. Events illustrated range from “grip and grin” to corporate hospitality events and product launches. The PR market tends to confine itself to specific events and PR campaigns. Images are not licensed for advertising use. Licences are usually valid for a limited timespan, although the trend towards clients “wholly-owning” the work (as a consequence of their imposition of rights-grabbing contracts) is rapidly changing this custom. Deliverables are usually digital media and represent Further Use.
• This market is not “failed” according to orthodox free-market theory, but photographers do not regard it as functioning well, especially at the lower end. Much of this is due to ignorance of copyright. Inalienable Moral Rights for photographers and Fair Contract law extended to include Intellectual Property are required to make it function properly.

CORPORATE

• The Supplier/Client Ratio: many suppliers service fewer clients, but the market is not grossly unbalanced. Suppliers overwhelmingly comprise freelance professionals or microbusinesses; clients range from small businesses through to large corporations, charities and public bodies.
• The Commissioning process: SME’s, corporate press and marketing departments or design agencies working on their behalf make direct contact with photographers or their agents to commission pictures.
• The Creation and Production Process: the entire range of production methods and processes is represented, but many news photographers and photojournalists also undertake corporate work, often using lights and assistants, occasionally unassisted and using available light or on-camera flash.
• The Valuation Process: fees negotiated directly between client and supplier. “Market” day-rates predominate, but in the upper end of the market fees are based on the commercial value of the image to the client and the Base Usage Rate system is well-established. This is one of the great problem areas for any so-called “orphan works licensing” scheme.
• The Licensing Process: at the lower end of the market, clients tend to have little grasp of copyright. Photographers automatically retain copyright but there is an increasing trend by clients towards rights-grabbing, usually for little or no extra fee beyond that for traditional limited corporate use. Clients often insist that Internet use be included for no extra fee, or for a nominal fee increase. Clients often assume that they “own” the pictures and are free to use them for any “corporate” purpose. High-end clients tend to have a good grasp of copyright and limited use.
• Usage: Images are licensed for specified uses to illustrate Annual Reports, in-house magazines, corporate and marketing brochures and flyers, point-of-sale and below-the-line advertising materials, etc. The NUJ defines much of this work as “extended PR”. The corporate market can be considered an extension of the PR market, with the work not limited to specific events or campaigns, but not including above-the-line advertising. Images are not licensed for such advertising use. Licences are usually valid for a limited timespan, although the trend towards clients “wholly-owning” the work (as a consequence of their imposition of rights-grabbing contracts) is rapidly changing this custom. Deliverables are usually digital media and represent Further Use.
• This market is not “failed” according to orthodox free-market theory, but photographers do not regard it as functioning well, especially at the lower end. Much of this is due to ignorance of copyright. Inalienable Moral Rights for photographers and Fair Contract law extended to include Intellectual Property are required to make it function properly.

ADVERTISING

• The Supplier/Client Ratio: many suppliers service fewer clients, but the market is not badly unbalanced. At the high end, few clients (usually advertising agencies working on behalf of the end client) commission work from relatively few highly-skilled specialists, usually via their agents. Suppliers overwhelmingly comprise well-established freelance professionals, microbusinesses or small businesses; clients range from SME’s through to multinational corporations, charities and public bodies.
• The Commissioning process: advertising agencies and corporate marketing departments make direct contact with photographers (or more usually their agents) to commission pictures.
• The Creation and Production Process: the entire range of production methods and processes is represented, but usually a pictorial concept will have been developed by creative staff at the advertising agency. The shoot will be directed by the advertising agency’s Art Director and usually feature professional models, stylists, property managers and others, all of whom work under contract, usually to the photographer or his producer. Model- and property-releases are essential and used as standard. The production process tends to have high production values and as a consequence be costly. The imagery will be for the exclusive use of the end client.
• The Valuation Process: fees negotiated directly between client and supplier. Fees are based on the commercial value of the image to the end client. “Market” day-rates are often used, but in the upper end of the market the Base Usage Rate system is prevalent and well-understood.
• The Licensing Process: most clients have a good grasp of copyright. Photographers automatically retain copyright. Images are licensed for specific uses, in specific geographic territories, for a specific length of time. Extra uses are costed as additional percentages or multiples of the agreed Base Usage Rate for that image. This is one of the great problem areas for any so-called “orphan works licensing” scheme.
• Usage: Images are exclusively used to illustrate above-the-line advertising in newspapers and magazines, on posters, billboards, hoardings and in other media. Deliverables are usually digital media and represent Further Use.
• This market functions reasonably well according to orthodox free-market theory.

The Uses of Creative Intellectual Property in the Networked Era

stop43.org.uk@me.com — 2010-04-28T09:30:00+01:00

Introduction

It is our concern that if appropriate legislation regulating digital copyright is to be drafted, it is first necessary to properly understand how creative intellectual property is used in the era of digital media and digital networking. Here is a contribution from photographers on this subject - one with which we are intimately familiar. Different media tend to be put to different uses. This article, although referring to other media, will concern itself primarily with the uses of photographs.

Let us first categorise the uses to which creative Intellectual Property (IP) is put:

• End Use: The final use made of an instance of IP;
• Further Use: any use made of the IP before its End Use.

Both of these can be subcategorised:

• Private Use (by an individual or household, as defined by typical DVD or CD License to Use statements);
• Public Use (in which the IP is put on public display or made available for the public to enjoy or share); and
• Commercial Use (in which the IP is used to generate revenue in some form, and/or to further a political, religious, or social (charity) purpose).

There is an economic value chain from the originator to end user of IP. End Use is exactly that: the end of the value chain. All other uses can be categorised as Further Use in that subsequent private, public or commercial use can be made of the intellectual property beyond this point.

Before the advent of cheap and ubiquitous networked digital capture devices, IP on most traditional media could not be easily put to Further Use because the practicalities and barriers to further use of that IP were difficult to surmount. It is now trivially easy to digitise almost any medium into usable formats for Further Use, and the ease of use and propagation of digital IP is such that with few exceptions there is no longer any real end-user of digital media: it can be endlessly used, re-used and combined or “mashed-up” into new uses.

It is important to note that the primary purpose of all copy-protection and Digital Rights Management mechanisms is to limit that instance of the IP to its defined End Use and prevent unauthorised Further Use.

Here are some examples of the six categories of use:

END USE
usually the end of the economic value-chain for that particular instance of the IP

Private
• a photographic print of a privately commissioned portrait
• a printed wedding album
• purchase of a limited-edition "art" print
• the enjoyment of books and other printed matter, traditional vinyl records, CDs, videotapes and DVDs bought for private use, as defined in their accompanying Licenses to Use
• before the widespread adoption of domestic tape and video recorders, broadcast radio and television.

Public
• viewing a picture on a public gallery wall
• reading a book in a public library
• attending a free-to-enter exhibition, performance of theatre, music, the screening of a film, a poetry recital or book reading, or similar event not staged to further a commercial, political, religious or social (charity) purpose.

Commercial
• listening to music "piped" to shops, restaurants, lifts, and other public spaces
• attending a pay-to-enter exhibition, performance of theatre, music, the screening of a film, a poetry recital or book reading, or similar free-to-enter event staged to further a commercial, political, religious or social (charity) purpose.

FURTHER USE
not usually the end of the economic value chain for that instance of the IP

Private
• any recombination, collaging or “mash-up” of IP originated by others, for that individual’s study, practice or amusement

Public
• display on a public gallery wall
• placing a book in a public library
• mounting a free-to-enter performance of theatre, music, the screening of a film, a poetry recital or book reading, or similar event
• Use in any way on the public Internet (including “blogs”) for non-commercial purposes (see below), or on “private” web-pages viewable by others, such as Facebook. Note: This is not private end use because it is in fact publishing, and makes it trivial for IP displayed there to be re-used by others, without authorisation. Furthermore, Facebook and others assert or have asserted rights to use IP posted to their services over and above those necessary for the provision of their services. Such assertions are known as rights-grabs.
• any recombination, collaging or “mash-up” of IP originated by others, for public display

Commercial
• the publishing, resale or re-licensing of the IP in any form, paid or not
• use in advertising, or in an advertising context (the advertiser is making money from the use. This includes search engine results pages or “blog” pages that contain advertising banners or links)
• use in a commercial, political, religious or social (charity) context; i.e. to further a commercial, political, religious or social (charity) purpose
• any public recombination, collaging or “mash-up” of IP originated by others, to achieve a commercial, political, religious or social (charity) end, such as the infamous “Ashes to Ashes” political posters
• borrowing a book, CD or DVD from a public library
• use on the Internet, beyond Public use
• Editorial uses in “the media”
• Public Relations uses in “the media”, etc.
• “Corporate” uses such as Annual Reports, in-house magazines, brochures, flyers, etc.
• “Educational” use. United Kingdom universities generated £59 billion for the UK economy in 2009, more than the pharmaceutical industry or the agricultural sector. Education is not unprofitable, and many creatives depend upon licensing their IP for educational uses for their main income stream. We know that many students are encouraged to duplicate photographs found on the Internet for inclusion in their course work, and that their teachers and tutors do exactly the same when preparing tuition materials. This must be considered commercial educational Further Use.

An additional usage definition is possible: Cultural Use. In our view, this use can be defined as being similar to Public End Use, but with some restrictions. In other words:
• viewing a picture on a public gallery wall
• reading a book in a public library
• attending a free-to-enter performance of theatre, music, the screening of a film, a poetry recital or book reading, or similar event free of advertising and sponsorship messages and not staged to further a commercial, political, religious or social (charity) purpose.

This is an End Use: no Further Use in any way can be made of the IP. In a digital networked form, it is one possible way in which so-called “orphan works” might be made available for public cultural enrichment.

The Association of Photographers' Gwen Thomas on Moral Rights

stop43.org.uk@me.com — 2010-04-22T22:30:00+01:00

Gwen Thomas, the Association of Photographers’ Legal & Business Director, last month gave an address to SABIP, the Strategic Advisory Board for Intellectual Property policy. This was the same meeting addressed by David Lammy, the former Minister of State (Higher Education and Intellectual Property), Department for Business, Innovation and Skills, who during his speech apparently announced that UK creatives already enjoy inalienable moral rights (listen at 1’ 18” from the start).

David Lammy has a Master’s Degree in Law from Harvard University.

Fortunately, Gwen knows her stuff rather more soundly than that and has written up her speech for an article in this month’s IMAGE magazine. The AoP have posted it on their website, and it is well worth reading and reflecting upon. It is especially recommended to the Intellectual Property Office and the Publishers’ Association. Some extracts:

“Moral Rights are, of course, important to all creators - but the Integrity and Attribution right are of particular importance to photographers. Indeed, any commercial visual artist, such as illustrators, value moral rights to protect their integrity and enhance their reputation.”

“The Integrity right is vital to photographers as images are easily manipulated. To be published, every image will go through a computer system after leaving the photographer - whether they’re delivered digitally or in analogue form.”

“Moral Rights currently have no monetary value, no teeth, so any discovery of a lack of credit (where asserted) or an image treated in a derogatory way, means the photographer has to prove a loss of income – as a freelancer this is incredibly difficult. How do you show a commissioner was trying to find you, because you weren’t credited, to give you a job or no longer wants to use you because they think the photography is no longer special or of a good enough quality. An injunction at this point is useless as the damage is already done, and monetary damages unquantifiable.”

“The lack of reward and recognition will diminish the incentive to create new works, which will, in turn, diminish the UK’s creative industry.”

Gwen is one of the few professional administrators to have emerged from the Digital Economy Bill Clause 43 fiasco with her reputation and integrity intact.

Gone, but not forgotten

stop43.org.uk@me.com — 2010-04-20T23:30:00+01:00

“PS. Clause 43 was dropped from the Bill yesterday. Following further reflection, the Government will aim to reintroduce measures along similar lines when an opportunity arises in the new Parliament.”
- Stephen Timms, then Parliamentary Under-Secretary, Department for Business, Innovation and Skills; Financial Secretary, HM Treasury; to Frank Dobson MP in a letter dated 8 April 2010

We would like to suggest to a theoretical future Labour Government that they produce a principled rebuttal of our arguments before they do so. For reference, they are:

• The Privacy and Exclusivity Problems
• What is a “Diligent Search”?
• “Diligent Search” a red herring
• The “Market Rate” Myth
• Misplaced faith in “Consultation”

and, of course, our guiding principle:

“It is a logical and legal absurdity to talk of licensing works whose authors cannot be identified while there are still significant groups of authors who do not have the right to be identified.”- Viscount Bridgeman, speaking in the House of Lords during debate on the Digital Economy Bill Clause 43

On Digital

stop43.org.uk@me.com — 2010-04-21T22:30:00+01:00

Download this article as a PDF

Introduction

It is our concern that if appropriate legislation regulating digital copyright is to be drafted, it is first necessary to properly understand the nature of digital media and digital networking. Here is a contribution from photographers on this subject - one with which we are intimately familiar.

Statements have been made by the Government to the effect that regulation of digital copyright is too complex for primary legislation, because too much remains unknown and powers must be granted in advance to regulate unpredictable future developments. This after more than four years of research and "consultation", starting with the Gowers Review in 2006 and continuing with the Lammy Review in 2009.

That is a patronising and lazy attitude unworthy of the intellects who took part in Clause 43's gestation and drafting. The primary characteristics of digital data, digital media and digital networking have been widely known, well understood and straightforward to describe for nearly thirty years. The current spread of Internet and email use, social networking and file sharing is simply a manifestation of the lowering of the barriers to entry to digital networking and the origination, sharing and recombining of digital media afforded by more powerful and smaller computing devices, more capable, easier-to-use software, and pervasive digital networks. There is good reason to believe that this trend will continue.

1. Digital data can be copied exactly.

This is the first primary characteristic of digital media, and what distinguishes it from conventional "analogue" media. Copies of digital files are exact copies, identical in every way, with no quality loss. This is why software works, why the spreadsheet you send to a colleague still calculates correctly, and why exact backups of your work are possible. Because of this characteristic there is really no such thing as a unique digital master file; there is only either a single copy of the data, or multiple identical copies. Of course it is also possible to derive functionally-similar copies from an original digital file. Resized digital images, images with their metadata stripped, and images saved in different file formats can all be visually identical and functionally similar to an original, but comprise different data structures.

This gives rise to the first point of confusion for consumers and other users of creative intellectual property. Unlike stealing a physical object and thereby depriving its owner of its use, the unauthorised copying of a digital data file leaves the original in place for its owner to continue unsuspectingly to enjoy. Unauthorised copying therefore appears to be a “victimless crime”. It is not. The original data file’s value to its owner is reduced because the unauthorised copy can go on to be freely duplicated and used elsewhere by others who might otherwise have bought an appropriate licence to use it at the proper market rate from its owner, or who might go on to use it in ways that its owner would not sanction. Law recognising this fact in relation to illegal file sharing was enacted in the Digital Economy Act 2010, and yet its antithesis, this false and sloppy “victimless crime” thinking, remained codified in the Digital Economy Bill Clause 43.

2. Digital data is separate from its storage medium.

A digital data file can exist stored on a hard disk, memory stick, CD or DVD, data backup tape, in random access or flash memory or any other physical storage medium and be copied freely between them. When you replace your worn-out old computer you copy your data from it to a new one: the storage medium changes but the data itself remains unchanged.

This gives rise to the second point of confusion for consumers and other users of creative intellectual property: they think that they have “bought” a CD, DVD or data file. In fact they have bought and own a copy of the physical storage medium, but only paid for a licence to use the intellectual property stored upon it; they have not bought its copyright. Consumers do not “buy” stories, articles, music or films; no-one need “buy” photographs. In all cases an appropriate licence to use is sufficient.

3. Digital data must be copied and transformed in order to use it.

Unlike viewing a photographic print, painting, drawing or sculpture; listening to live speech or music; or watching a film projection it is not possible to experience digitally-stored data at first hand. A digital data file resident on a physical storage medium must first be loaded by software into a digital device's random-access memory and then transformed into pixels on a screen to be viewed, or streamed to a digital-to-analogue converter and fed to an amplifier and transducer to be heard. These are transformative copying operations. This both proves the veracity of the first characteristic of digital data and introduces its fourth characteristic.

4. A digital network is no more than an extension of a digital device.

Any digital device consists of functionally-discrete modules such as data input, storage, processing and display, joined by internal communications conduits. A digital network is no more or less than the extension of these internal communications conduits beyond that device to other devices. Data travels through these conduits accompanied by identification and routing metadata. In so travelling its digital format might be transformed to comply with the technical requirements of the conduit, but on arriving at its destination it can be transformed back again to become an exact copy of the data on the originating device. That really is all there is to it. WiFi, Ethernet, cellular networks, IP addresses, MAC addresses, TCP/IP and the rest are merely digital plumbing.

5. All digital data transmission can be logged.

Your itemised mobile phone bill is a testament to this fact. Identification and routing metadata can be and is routinely logged. Such logging has been legislated for in the Digital Economy Act. This is the basis of all digital billing, accounting and auditing systems. Authorial metadata is no different from any other digital data and can be similarly logged.

It is significant that UK publishers accept, use and benefit from digital logging as a means of doing business when selling their wares, and yet object to the digital logging of the authorial metadata of their contributors' submissions as "unacceptably onerous and expensive". The same software and computer systems can easily carry out both functions simultaneously, and this is exactly what they do, by law, in Germany. Germany appears to enjoy a thriving publishing industry.

6. All digital copy-protection and digital rights management mechanisms can be subverted.

In transforming a stored digital file into pixels for viewing or sound waves for listening to, all encryption and Digital Rights Management mechanisms must be unlocked. Herein lies their weakness: the unlocking process can be reverse-engineered. The fact that these mechanisms can be subverted does not imply that they always will be every time a digital rights managed file is used. DVD copy protection was "cracked" within weeks of release of the format, but contemporary commercial DVDs remain copy-protected and sales healthy.

The subversion of digital rights management mechanisms can properly be compared to losses suffered by high street retailers as a consequence of shoplifting. Most shoppers do not steal; retailers remain profitable despite the activities of shoplifters. Retailers deploy measures to minimise shoplifting but regard the costs of those measures and the stolen stock as costs of doing business. They could reduce their losses by making their shops less consumer-friendly but know that in so doing they would reduce their overall sales and thereby suffer. Their measures limit their losses through shoplifting to a commercially-manageable level. In this regard, Digital Rights Management is no different. Many large, successful digital network businesses such as Apple iTunes are built upon digital rights-managed data distribution in the full knowledge that a commercially-acceptable proportion of that data will be "cracked" and illegally shared.

Future Legislation

Future digital copyright legislation has only to recognise these six primary characteristics of digital data and networking to be effective no matter what developments the future might hold by way of its proliferation and usage. It is quite wrong to assert that the future is unpredictable in this way. It is perfectly possible to word concise, comprehensible and effective primary legislation that takes into account the six primary characteristics of digital data and networking. Photographers intend to participate in exactly that.

(The author of this article has been directly professionally involved with digital data and networking for thirty years as a professional musician, R&D researcher for a major Japanese electronics manufacturer, professional photographer, and latterly, Apple Macintosh computer consultant to commercial and advertising photographers.)

BAPLA, the aftermath, and the future

stop43.org.uk@me.com — 2010-04-15T08:15:00+01:00

“It’s not good enough just to win. The losing side needs to know they have lost.” - Genghis Khan
“Victory has a thousand fathers; failure is ever an orphan.” - Jeremy Nicholl

We have won the battle, but the losing side clearly doesn’t understand that they have lost. They appear to regard the vote on April 7th in which Clause 43 was removed from the Digital Economy Bill before it became the Digital Economy Act as a temporary setback, nothing more. This is made apparent by the disappointing and unseemly pronouncements of the British Association of Picture Libraries and Agents (BAPLA), erstwhile “protectors of photographers”, who continue to claim to be exactly that.

The thousands of photographers and other creatives who took part in the Stop43 campaign know what really happened during the past month, because they watched it unfold in real time on Parliament TV, the EPUK, Pro-Imaging and Association of Photographers email lists, the Facebook group, Twitter, and the Stop43 website.

As BAPLA's website statement demonstrates, BAPLA do not appear to understand this. They still seem to be operating on the obsolete command-and-control assumption that they can control the news. They appear not to have realised that photographers already know the truth because they have lived it, and that they are discredited in the eyes of every photographer who actively campaigned in any way.

“When you find yourself in a hole, stop digging.” - Will Rogers

Of more concern is Big Culture (museums, galleries, the British Library and others), Big Media (publishers and broadcasters) and the Intellectual Property Office (IPO), who have been outflanked by the Stop43 campaign. They won't take that lying down. An Intellectual Property Act is coming and they'll do their best to make it The Return Of Clause 43.

Big Media (also mislabelled the “creative industries”), and their potential gain from Clause 43, we’ve always known about. Unrestrained they tend to act like greedy landlords, thinking only of today, bullying their tenant farmers into selling the seed-corn of professional contributors in return for this year’s profit, hoping that next year’s crop will simply spring, unsown and crowd-sourced, from the ground.

But Big Culture? They and the BBC also stood to be big winners from Clause 43. From an initial position of needing simply for conservational purposes to be able to digitise cultural artefacts such as decaying film stock, audio recordings, negatives and prints, their wants and wishes grew to an all-encompassing desire to make all culture freely available, including contemporary culture, rather in the manner of Google Books.

Doubtlessly this was all egged on by questionable EU assertions of the “economic value” of so-called orphan works, conveniently forgetting that they are not “orphans” at all - each one, in copyright, is someone’s lost property.

And so Big Culture, apparently ignorant of the economic realities of professional creatives’ lives and forgetting that the bulk of the artefacts that they conserve and curate are the products of highly-skilled professionals (how does one acquire the skill to work at the highest levels without that work being one’s full-time occupation?), set about an intellectual property land-grab so extensive that it would have inevitably terminated the businesses and careers of most professional creatives. What task will they leave to future cultural conservators if their overarching scorched-earth desires wipe us out?

We’re not really surprised. Big Culture is largely staffed by salaried career administrators, relatively few of whom have direct experience of or real sympathy with the freelance professional creative life. No wonder they know not what they do. It’s time for us to tell them.

And then there is the whole “consultation” process that spawned Clause 43, from Gowers onwards. The participants all spent a long time studying, negotiating under the threat of the EU Big Stick of wide-ranging copyright exceptions and the IPO's unwavering assertion that inalienable moral rights are non-negotiable (because Big Media find them “onerous” and too expensive), and between them constructed a latticework “solution” that they remain persuaded to be the best available under the circumstances.

They all have a huge emotional investment in the work they have done and “solution” they have negotiated, and now that they see it under threat from ignorant hooligans they continue irrationally and aggressively to defend it. Never mind that their “solution” lacks all principle. In this whole debate, we have not once heard our central thesis or arguments gainsaid from a moral or legal standpoint. All we have heard are the bleatings and tantrums of special interests and the fabricated enumerations of supposed economic gain.

The IPO’s position is interesting.

The default position of all photographers’ “representative organisations” has always been that there can be no discussion of so-called “orphan works” licensing without a corresponding implementation of inalienable moral rights. The IPO wrote to a Stop43 activist:

“Ministers are not willing to change the existing law (which has been in place since 1988) in a way that one of the two parties affected is strongly opposed to." - referring to Big Media.

And so, instead, the IPO proposed to change the existing law (which has been in place since 1988) in a way that one of the two parties affected is strongly opposed to. Photographers.

The IPO can and will produce fabricated enumeration of the economic value of the commercial use of so-called orphan works that will always trump any economic damage to the photographic constituency that we can enumerate. Cost-benefit will always be on their side. Photographers’ only substantial arguments thus far have been moral, ethical and legal, and that is what the legislative process is supposed to be.

If the IPO’s original task was just to build an economic case for so-called Orphan Works Licensing and Extended Collective Licensing, they have made a good job of it. Unfortunately for them, life isn't merely economic. If it were, we'd also have the return of public hangings with ticket sales and media rights, because that could also be shown to be of overall economic benefit. Morals and ethics preclude it.

What next?

Big Media must accept inalienable moral rights for photographers, copyright and Fair Contract law applied to Intellectual Property as it is in Germany. The Germans clearly have:

• an equivalent of the BBC
• an equivalent of the British Library
• an equivalent of Bauer Publishing
• a local News Corporation operation.

Germany doesn't appear to be a publishing wilderness, so why should the UK become one, if we have our moral rights?

• Big Culture must abandon its overarching ambition to be the free delivery conduit of all forms of culture, past and present, at the expense of the businesses and careers of professional creatives. Digital preservation of decaying artefacts and the making of those digital copies available to the public for strictly cultural use must suffice. Our so-called “orphan works" are not little golden coins lying on the ground for the "creative industries" to pocket and the "cultural sector" to support itself with. Instead, Big Culture must content itself with commercial exploitation of work of known provenance that it has been bequeathed. Our ideas will help them. Read on.

• Photographers and other creatives must grasp the initiative and develop their own ideas for a proper solution to the so-called “orphan works” problem. We have, and we are, and given that perhaps surprisingly we’re not terribly vindictive people our initial thinking points to a possible solution that could result in a reasonable win for all, rather than the winner-takes-all for Big Media and Big Culture versus obliteration of freelance professional creatives of Clause 43. It will have to pass the Berne three-step test first, assuming that it is possible for any use at all of so-called “orphan works” to pass that test.

• Because of the conflict of interests their membership appears to represent, BAPLA might best be advised to get out of the negotiating and lobbying game altogether. Their current attempts to rewrite widely-known recent history and save face with their sponsors are unseemly and should stop.

When I saw my (excellent) MP and she asked me why we'd left it so late to act, I said: "we'd been relying on our professional associations to negotiate on our behalf." "Always a mistake", she immediately replied. Lesson learned.

The AOP's position is clear

stop43.org.uk@me.com — 2010-04-14T10:15:00+01:00

On Tuesday April 6th, at the end of the Second Reading of the Digital Economy Bill, Stephen Timms, former MP for East Ham, and Financial Secretary to the Treasury, stood up, waved the “BAPLA letter” and said the following:

“I welcome the statement about clause 43 made last week by a number of photography organisations, including the Association of Photographers, the National Union of Journalists, the Royal Photographic Society and Getty Images, welcoming changes made to the Bill in the other place and looking forward to working with Government on the regulations to be made under clause 43.” - Hansard.

This announcement startled the Conservative Front Bench, who until that point had not known of the “BAPLA letter”. The Association of Photographers, a signatory of that letter, observing proceedings and realising that their true position regarding Clause 43 had just been publicly misrepresented, moved quickly and that night sent an email to Ed Vaizey and Jeremy Hunt, then Conservative Shadow Ministers for Culture, Media and Sport. The email clearly restates the AOP’s opposition to the Bill becoming law with Clause 43 intact.

The AOP have kindly provided us with a PDF of that email. Its text is reproduced below:

Ed,

Having followed the second reading of the Digital Economy Bill in the House of Commons today, as well as speaking to Paul Ellis this evening [who is both an AOP member and the architect behind Stop43]; I believe it would help if I made the AOP’s position very clear with regard to Clause 43

As I believe Gwen [Thomas] mentioned to you, when you met last Monday, the AOP’s view on Clause 43 has always been first and foremost that it should be totally removed from the Digital Economy Bill and that separate Primary Legislation be drawn up and introduced to deal with the complex issue of Orphan Works.

In spite of amendments made to date, Clause 43 as currently laid down, remains unacceptable and totally unworkable in practical terms [we should know, the production, licensing and usage of images is our members’ primary business!]. In addition, no mention has been made of photographers’ moral rights as conferred under the CDPA 1988, which we would like to see become inalienable, in a similar way to that which Germany has adopted.

Indeed, no practical consideration has been given at all to the means by which any owner of copyrighted work can search a register or database [yet to be determined] on a daily basis, to see if any of their work [in some cases, hundred of thousands of images taken over half a life time] has been registered. It is also important to remember, that digital images are collections of pixels and not text-based characters that can easily be searched for.

If, however, clause 43 cannot be removed and separate Primary Legislation not be drafted in its place; we agreed with other like-minded organisations [the NUJ, RPS, DACS, Getty] to co-sign a letter drafted by BAPLA, that stated our joint and unified concerns regarding the clause [this letter superseded a previous and stronger letter written by Getty’s lawyers, before clause 42 became clause 43].

I now understand that mention was made of this [BAPLA] letter in today’s debate, which if taken out of context or partially quoted, could provide a different view to that which was stated quite clearly in the body of the letter itself.

The fact remains that the AOP is opposed to Clause 43 as it stands. We represent professional photographers and will uphold their rights and indeed the rights of all photographers. As currently drafted, we believe that clause 43 is simply unacceptable and should be removed.

If it cannot be removed, we will work with the prevailing authority to ensure that photographers’ rights and concerns are clearly heard and understood. This is because the final mechanism, what ever it is to fulfil the legislation [as stated], must work on a practical and legal basis, without creating further issues and difficulties that will then require additional legislation to work correctly.

We are not a political or commercial organisation – instead, we simply represent professionals, who conduct their business in an ever more complicated world.

Should you have any questions or wish to clarify any of the points stated in this letter, please call me at the office tomorrow on my direct line: 0208 749 4377, or on my mobile: 0207 749 4388.

Very best regards,

Kingsley Marten

Managing Director

The Association of Photographers Ltd.

Head Office & Registered Office:
81 Leonard Street
London
EC2A 4QS

Labour Party submits amendment before today's debate

stop43.org.uk@me.com — 2010-04-07T12:15:00+01:00

Today the Labour Party tabled the following amendment to the Digital Economy Bill:

Digital Economy Bill[Lords], continued

Secretary Ben Bradshaw

* Page 52, line 12, leave out Clause 43.

But it’s not over yet. It has been pointed out that this could be a tactical amendment to test the strength of cross-party opposition to Clause 43. It may be withdrawn, with Government then confident of pushing Clause 43 through the Wash-Up.

Keep up the pressure, please.

The Tories robustly oppose Clause 43

stop43.org.uk@me.com — 2010-04-07T08:40:00+01:00

Our confidence on Sunday in the in the line to be taken by the Conservative party against Clause 43 was well-founded. Here are some quotations from yesterdays’ Second Reading debate in the House of Commons:

• “We cannot support Clause 43. We would like to support the objectives of that clause on orphan works, but unintended consequences occur unless the wording is right.” - Jeremy Hunt, Shadow Secretary of State for Culture, Media and Sport

“Clause 43, on orphan works, and the subsequent clauses dealing with extended collective licensing, have been mentioned. That is another terribly sad subject, because the wish to use some of the creative content currently locked in libraries, museums and the BBC is absolutely right. The motivation behind Clause 43 is entirely admirable, but again, it was not properly thought through and there are genuine concerns about the conditions in which it will operate. There is supposed to be a market rate, but what is the market rate for a photograph that has never been used? Photographs have hugely varying costs depending on who took them, their content and their age, yet it is suggested simply that there should be a market rate. There is also concern about the so-called “diligent search” that the collecting agency is supposed to carry out, and how diligent it will actually be... Clause 43 is not fit for purpose... Clause 46, if it is a Henry VIII clause, should not be passed.” - John Whittingdale, Chairman, Culture, Media & Sport Committee

• “...if someone finds your photograph, wants to use it and decides that they can’t trace you, they can do whatever they like with it after paying an arbitrary fee to a UK Government-appointed “licensing body”. You’ll never know unless you happen to find it being used in this way...” - Peter Luff, Chair, Business, Innovation and Skills Committee, quoting from Stop43’s public statement. Mr. Luff also quoted extensively from Jeremy Nicholls’ blog, with reference to the “Ashes to Ashes” copyright infringement affair

• “I can say categorically that we will not allow clauses 1, 21 and 43 to go through... My hon. Friend the Member for Mid-Worcestershire also mentioned in particular Clause 43 about orphan works and photo issues. I am glad that he did so; that is one of our red lines. We will not support any regulation that includes Clause 43.” - Adam Afriyie, Shadow Minister (Innovation and Science), Business

Yesterday good day for photographers, but It’s not over until it’s over. That will be today. The “creative industries” - middlemen, aggregators and marketers, few of whom themselves create the “content” that they sell - were lobbying against us and for the retention of Clause 43 all day yesterday. We have no reason to believe that they might take today off.

The Tories are committed in their opposition to Clause 43. The Liberal Democrats, as yet, appear not to be. Photographers need one more day of effort, please. Thank you.

List of all Liberal Democrat MPs

stop43.org.uk@me.com — 2010-04-07T01:30:00+01:00

Below is a complete list of Liberal Democrat MPs & their email addresses. They need to have it urgently explained to them why the proposed Liberal Democrat idea of amending Clause 43 will not work, and that the clause must be deleted from the bill.

You will find sources of information, arguments to use, and tools here.

Nick Clegg
libdemleader@parliament.uk

Danny Alexander
danny@highlandlibdems.org.uk

Norman Baker
normanbaker@cix.co.uk

John Barrett
barrettj@parliament.uk

Alan Beith
cheesemang@parliament.uk

Colin Breed
colinbreed@blueyonder.co.uk

Annette Brooke
brookea@parliament.uk

Jeremy Browne
jeremy.browne@tauntonlibdems.org.uk

Malcom Bruce
brucem@parliament.uk

Paul Burstow
paul@paulburstow.org.uk

Lorely Burt
burtl@parliament.uk

Vince Cable
cablev@parliament.uk

Ming Campbell
fife_office@mingcampbell.org.uk

Alistair Carmichael
carmichaela@parliament.uk

Edward Davey
daveye@parliament.uk

Tim Farron
tim@timfarron.co.uk

Lynne Featherstone
lynne@lynnefeatherstone.org

Don Foster
fosterd@parliament.uk

Andrew George
andrew@andrewgeorge.org.uk

Sandra Gidley
gidleys@parliament.uk

Julia Goldsworthy
info@juliagoldsworthy.org

Mike Hancock
portsmouthldp@cix.co.uk

Evan Harris
harrise@parliament.uk

Nick Harvey
mail@nickharveymp.com

David Heath
davidheath@davidheath.co.uk

John Hemming
john.hemming@jhc.co.uk

Paul Holmes
chesterfield@cix.co.uk

Martin Horwood
martin@martinhorwood.net

David Howarth
info@davidhowarth.org.uk

Simon Hughes
simon@simonhughes.org.uk

Chris Huhne
chris@chrishuhne.org.uk

Mark Hunter
hunterm@parliament.uk

Paul Keetch
info@paulkeetch.org.uk

Charles Kennedy
charles@highlandlibdems.org.uk

Susan Kramer
info@susankramer.org.uk
Norman Lamb
info@normanlamb.org.uk

David Laws
enquiries@yeovil-libdems.org.uk

John Leech
leechj@parliament.uk

Michael Moore
michaelmooremp@parliament.uk

Greg Mulholland
info@gregmulholland.org

Mark Oaten
oatenm@parliament.uk

Lembit Opik
opikl@parliament.uk

John Pugh
pughj@parliament.uk

Alan Reid
reida@parliament.uk

Willie Rennie
info@dunfermlinelibdems.org.uk

Dan Rogerson
rogersond@parliament.uk

Paul Rowen
rowenp@parliament.uk

Bob Russell
brooksse@parliament.uk

Robert Smith
robert.smith.mp@parliament.uk

Andrew Stunell
enquiries@andrewstunell.org.uk

Jo Swinson
swinsonj@parliament.uk

Matthew Taylor
taylorm@parliament.uk

Sarah Teather
teathers@parliament.uk

John Thurso
thursoj@parliament.uk

Steve Webb
steve@stevewebb.org.uk

Roger Williams
williamsrmp@gmail.com

Stephen Williams
stephenwilliamsmp@parliament.uk

Mark Williams
williamsmf@parliament.uk

Phil Willis
phil.willismp@ntlworld.com

Jenny Willot
jenny@jennywillott.com

Richard Younger-Ross
yrossr@parliament.uk

Clause 43 stands or falls today - ACT NOW

stop43.org.uk@me.com — 2010-04-07T01:40:00+01:00

Today really is the day. Given the intensely controversial nature of the way the Digital Economy Bill is being run through Parliament, we were unsure of the exact procedure and schedule. Now we know that it will have its Committee Stage, Third Reading and be voted on in the space of around two hours this afternoon. We also know that our opponents were lobbying intensively all day yesterday, throughout the Second Reading.

IT IS EXTREMELY IMPORTANT TO GET OUR MESSAGE ACROSS TO THE LIBERAL DEMOCRATS. A full list of them is here.

You have the sources of information, the arguments to use, and the tools. PLEASE USE THEM NOW. It doesn't matter if effort is duplicated - the more, the better. All content on stop43.org.uk is free for use in reporting this story.

SOURCES OF INFORMATION

• http://www.stop43.org.uk/
• http://www.jeremynicholl.com/blog/
• http://copyrightaction.com/category/campaigns/digital-economy-bill

ARGUMENTS TO USE

• Open Letter to Liberal Democrats
• We are the authentic voice of photographers
• Overall outline, plus problems in detail
• The Government’s position rebutted, point by point
• Our objections to LibDem amendments, including statement of photographers' current copyright problems
• "Viral" images, each illustrating an aspect of Clause 43's problems
• The Privacy and Exclusivity Problems
• What is a "Diligent Search"?
• "Diligent search" a red herring
• The "Market Rate" Myth
• Misplaced faith in "Consultation"

TOOLS

• Virals
• Twitter
• Facebook
• LibDem MPs list
• Key MPs list
• BIS Select Committee members list

PLEASE USE THEM NOW. Thank you.

Open Letter to the Liberal Democrats

stop43.org.uk@me.com — 2010-04-07T00:45:00+01:00

Don Foster MP, Shadow Culture, Media and Sport Secretary, and Olympics

Dear Mr Foster

As a result of today’s Second Reading in the House of Commons and the Liberal Democrats’ stated wish to amend rather than delete Clause 43, we feel it necessary to restate our position to you, so that there should be no misunderstanding.

1. It is morally and legally indefensible to demand the use of existing orphan works without simultaneously enacting effective measures to prevent the generation of future orphan works. We need such measures quid pro quo for conceding any use of any kind of our orphaned intellectual property. This is our property, remember.

2. You propose to exempt photographs made after 1950 from any Orphan Works scheme.

With the greatest of respect to others we would submit that we, photographers, some of us professionally active before 1950 and still active, are the authority on this subject. We have conferred among ourselves and cannot conceive of a reliable way to accurately identify that cut-off point for a very substantial proportion of photographs.

The problem also remains of damage to the residual value of pre-1950 photographs bequeathed in wills to photographers' children and successors. Although an admittedly small number of photographers will be very significantly affected in this way, we see no reason why they should suffer when we believe that our new thinking, which we promise to work with you to realise, might avoid such damage whilst simultaneously giving the cultural sector what they say they need.

3. You propose to exempt photography from any Extended Collective Licensing schemes.

In our view and experience, current copyright law suffers from significant defects in the way it applies to photography. We have already pointed out some of them in detail. The removal of photography from Extended Collective Licensing proposals will result in photography simply not being discussed when secondary regulation is drafted. As a consequence, this opportunity for professional photographers’ crying need for the defects in current copyright law to be addressed will be lost, perhaps for a generation. We will have no chance to re-negotiate inalienable moral rights or proper sanctions against copyright infringement, which could be raised if Clause 43 is deleted, and upon which point all photographers’ organisations, the NUJ, BAPLA, Getty Images and others are unanimous.

We urge the Liberal Democrats to consider what we believe to be the impracticality and negative consequences of your proposed amendments, withdraw them, and vote with the Conservatives to remove Clauses 43 and 46 from the Digital Economy Bill. This will allow the beneficial public and cultural intent underlying Clause 43 to be reintroduced in subsequent primary legislation after proper consideration, rather than in trying to amend something which we believe to be fundamentally flawed and unworkable.

In his speech, John Whittingdale MP, Chairman, Culture, Media & Sport Committee, stated that Clause 43 is not fit for purpose; Clause 46, if it is a Henry VIII clause, should not be passed. We, of course, agree.

Thank you.

Tories will not let Bill progess with Clause 43 still included

stop43.org.uk@me.com — 2010-04-06T17:45:00+01:00

In reply to a question by Kate Hoey MP, Jeremy Hunt, Shadow Secretary of State for Culture, Media and Sport and Conservative lead on the Digital Economy Bill confirmed that Tories will not let the Digital Economy Bill progress through washup into law while it still includes Clause 43.

There has been no specific mention of Clause 46, the Henry VIII clause that allows the Secretary of State to amend at will the Copyright, Designs and Patents act 1988 and any “Digital Economy Act 2010”. It empowers the Secretary of State to undo all of the changes to the Digital Economy Bill that have been so carefully negotiated, and make new changes. It is a “Henry VIII Clause” enabling changes to be made in pre-existing primary legislation by way of secondary legislation enacted via Statutory Instruments. A Secretary of State with a whipped majority can do more or less whatever he likes under Clause 46.

Tories "cannot support Clause 43"

stop43.org.uk@me.com — 2010-04-06T16:55:25+01:00

Jeremy Hunt in the House of Commons at 16:50 BST.

"Superaffirmative Resolution Procedure" not enough

stop43.org.uk@me.com — 2010-04-06T16:23:14+01:00

Harriet Harman has just announced that regulations implemented via Statutory Instruments will require "superaffirmative resolution procedure".

#deb
#stop43

THIS IS NOT ENOUGH. CLAUSE 43 OUT.

Tweet now, please. Use the Tweet an MP site.

The result:

stop43.org.uk@me.com — 2010-04-07T23:00:00+01:00

Today, The Digital Economy Bill underwent its Committee Stage and Third Reading in the House of Commons. In the course of the debate, Clause 43 was removed from the Bill.

The way is now open for photographers and other creatives to present new thinking enabling the legitimate use of our genuine orphan works for strictly defined non-commercial “cultural” purposes in a way that will satisfy the needs of the cultural sector, to prevent the future orphaning of our work, and to redress defects in current copyright law.

Heartfelt thanks to all who have helped make this result possible.

Why Clause 46 must go, too

stop43.org.uk@me.com — 2010-04-06T11:50:00+01:00

Clause 46 must be removed. It empowers the Secretary of State to undo all of the changes to the Digital Economy Bill that have been so carefully negotiated, and make new changes. It is a “Henry VIII Clause” enabling changes to be made in pre-existing primary legislation by way of secondary legislation enacted via Statutory Instruments. A Secretary of State with a whipped majority can do more or less whatever he likes under Clause 46.

Henry VIII Clause - Wikipedia says:

Some statutory instruments are made under provisions of Acts which allow the instrument to change the parent Act itself, or to change other primary legislation. These provisions, allowing primary legislation to be amended by secondary legislation, are known as Henry VIII clauses, because an early example of such a power was conferred on King Henry VIII by the Statute of Proclamations 1539.[16] The Delegated Powers and Regulatory Reform Select Committee of the House of Lords issued a report concerning the use and drafting of such clauses, [17] an issue its chairman remarked "goes right to the heart of the key constitutional question of the limits of executive power". [18] Such clauses have often proved highly controversial — for instance, that in the Nationality, Immigration & Asylum Act 2002 which prompted the aforementioned report, and more recently the Legislative and Regulatory Reform Act 2006.

“Statutory Instruments”

Digital Economy Bill Section 46 does stipulate that decsions must be " laid before, and approved by a resolution of, each House of Parliament ". Wikipedia says "It should be noted that Parliament's control is limited to approving, or rejecting, the Instrument as laid before it: it cannot (except in very rare cases) amend or change it."

Government has stated that any Statutory Instruments to be enacted concerning Clause 43 must be subject to “Affirmative Resolution Procedure”. Wikipedia says:

Statutory Instruments which are subject to affirmative resolution are less common, making up about 10% of the total.[12] This is the more stringent form of parliamentary control as it requires positive approval, rather than the absence of a decision to annul. Accordingly, it is used where the delegated legislation may be more controversial.
The parent Act may require that the proposed Statutory Instrument is approved by both Houses of Parliament (or, in the case of an Instrument which relates to financial matters, by the House of Commons only) either:

before it is made (ie in draft form),
after it is made, but before it can come into force, or
after it is made and has come into force, but it cannot remain in force for longer than a specified period (usually 28 days, excluding periods when Parliament is dissolved, prorogued or adjourned for more than four days) unless approved within that period.[10]

Once the Instrument is laid before Parliament, the Government will move a motion in each House that the Instrument is approved.
The last time a draft Statutory Instrument subject to affirmative procedure was not approved by the House of Commons was on 12 November 1969 when the House rejected four draft Orders relating to parliamentary constituencies.[13]

Clause 46 in full:

46

Power to make consequential provision etc

(1) The Secretary of State may by regulations made by statutory instrument make incidental, supplementary, consequential, transitional, transitory or saving provision in connection with the amendments made by this Act.

(2) The regulations may—

(a) make different provision for different purposes,

(b) modify an Act passed before or in the same Session as this Act or subordinate legislation made before this Act is passed, and

(c) where they are made in connection with an amendment made by section 28 or by a provision listed in section 49(3), modify a provision of an Act passed, or subordinate legislation made, before the day on which that amendment comes into force.

(3) A statutory instrument containing regulations under this section that amend or repeal a provision of an Act may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

Any other statutory instrument containing regulations under this section is subject to annulment in pursuance of a resolution of either House of Parliament.

In this section—

“modify” includes amend, repeal or revoke;

“subordinate legislation” has the same meaning as in the Interpretation Act 1978.

Clause 43 is not a political issue

stop43.org.uk@me.com — 2010-04-06T08:45:00+01:00

For the avoidance of doubt: Following the news that we are confident that the Conservatives will oppose Clause 43 we would like to make the following statement:

Stop43.org.uk is non-partisan. Stop 43 has not aligned itself with the Conservatives or any of the other parties. We are not backing or backed by any party or recommending that any party will enact better legislation when in power than any another. Our aim is to persuade ALL parties to remove Clause 43. Currently the Conservatives are the first to agree. Labour have been intransigent to our proposals and the LibDems want to alter the wording. We are still trying to persuade both Labour and LibDems to drop Clause 43.

Clause 43 is not a political issue, it is a legal one concerned with maintaining existing rights and international treaties. Releasing the news that we are confident that the Conservatives now agree with our legal arguments, does not infer any endorsement by Stop43 of them as a party, their policies, or their proposals for government should they win the next election.

Second Reading today - ACT NOW

stop43.org.uk@me.com — 2010-04-06T08:50:00+01:00

Today is the day. You have the sources of information, the arguments to use, and the tools. PLEASE USE THEM NOW. It doesn't matter if effort is duplicated - the more, the better. All content on stop43.org.uk is free for use in reporting this story.

SOURCES OF INFORMATION

• http://www.stop43.org.uk/
• http://www.jeremynicholl.com/blog/
• http://copyrightaction.com/category/campaigns/digital-economy-bill

ARGUMENTS TO USE

• We are the authentic voice of photographers
• Overall outline, plus problems in detail
• The Government’s position rebutted, point by point
• Our objections to LibDem amendments, including statement of photographers' current copyright problems
• "Viral" images, each illustrating an aspect of Clause 43's problems
• The Privacy and Exclusivity Problems
• What is a "Diligent Search"?
• "Diligent search" a red herring
• The "Market Rate" Myth
• Misplaced faith in "Consultation"

TOOLS

• Virals
• Twitter
• Facebook
• Key MPs list
• BIS Select Committee members list

PLEASE USE THEM NOW. Thank you.

Tories very likely to "robustly oppose" Clause 43

stop43.org.uk@me.com — 2010-04-05T20:00:00+01:00

We have reasons to be confident that the Conservative Front Bench will set out robust opposition to Clause 43 in tomorrow's debate. Please don’t forget Clause 46: it, too, has to go. It empowers the Secretary of State to undo all of the changes to the Bill that have been so carefully negotiated.

The Outdoor Writers and Photographers Guild joins stop43.org.uk

stop43.org.uk@me.com — 2010-04-05T15:00:00+01:00

A warm welcome to OWPG.

"Ashes to Ashes" election posters - the guilty parties

stop43.org.uk@me.com — 2010-04-08T15:50:00+01:00

Stop43 has learned that at no point were Kudos Film & Television, copyright holders of the Ashes to Ashes picture used in political advertising, approached by either the Labour or Conservative parties for permission to use the picture in this way.

Kudos’ PR company Premier Public Relations has said to us:

“Neither Kudos nor BBC were approached by either party to seek permission to use the image or quotes from Ashes to Ashes for their posters or indeed the use of any images or quotes to be used in the sale of merchandise. Kudos own the copyright to the image and dialogue from Ashes to Ashes and as both Kudos and the BBC are non-partisan and do not endorse any political party, Kudos lawyers have written to the relevant retailers of this merchandise to request they cease the use of the image and lines from the drama thereof.”

And so, as we believed when we broke the story, both Labour and Conservative Parties stand in breach of Kudos’ copyright. We would also have thought that the parties’ advertising agencies Saatchi & Saatchi (Labour) and M&C Saatchi (Conservative), who know about such things as copyright infringement, exclusive rights and licenses to use, might have laid a restraining hand on excited Internet-generation political activists and their ill-considered mashups.

Jeremy Nicholl provides the full background.

The Proposed Lib Dem amendments - our objections in detail

stop43.org.uk@me.com — 2010-04-04T16:30:00+01:00

Stop43 have been asked to provide a more detailed explanation of our objections to the Liberal Democrats’ proposed amendments to Clause 43 of the Digital Economy Bill.

The Proposed Amendments:

Exempt recent photography from orphan works licensing

* Clause 43, page 52, line 20, at end insert 'subject to subsection (1A) below.

(1A) The regulations may not authorise the grant of a licence in respect of works of photography created after 1950.'

Exempt photography from extended licensing

* Clause 43, page 53, line 7, at end insert -

', or

(c) in respect of works of photography.'

Our Objections

1. We have stated our guiding principle, perfectly articulated by Viscount Bridgeman:

“It is a logical and legal absurdity to talk of licensing works whose authors cannot be identified while there are still significant groups of authors who do not have the right to be identified.”

It is morally and legally indefensible to demand the use of existing orphan works without simultaneously enacting effective measures to prevent the generation of future orphan works. We need such measures quid pro quo for conceding any use of any kind of our orphaned intellectual property. This is our property, remember.

Such measures must be practically enforceable. It is already illegal under the Copyright, Designs and Patents Act 1988 amendment 296ZG of 2003 to knowingly strip metadata. It is almost impossible to prove that metadata was stripped knowingly with deliberate intent to infringe, facilitate or conceal infringement; consequently this provision is in practice unenforceable, as will be any similar provision.

2. In current copyright law, the financial penalties for copyright infringement are no greater than the licence fee payable had the infringed work been properly licensed before use. This creates a positive incentive for publishers to infringe because many of their infringements go unnoticed and unchallenged, with the result that their overall costs are significantly lower than if they legally licensed all of their content.

Photographers and other creatives suffer daily from the economic and misrepresentative consequences of such systemic infringement of their copyright. Among many, many others, The BBC is a known habitual serial infringer in this way and daily generates new orphans by the thousand, as a consequence of images uploaded to its website having their metadata stripped in the process. We are photographers - we have the evidence.

Preventing the use of orphan photographs made prior to 1950 (assuming that a workable method for reliably identifying such photographs can be found) will result in professional photographers’ crying need for the defects in current copyright law to be addressed to be accorded a much lower priority than if contemporary orphan photographs were also to be licensable. The removal of photography from any Extended Collective Licensing scheme will result in photography simply not being discussed when secondary regulation is drafted.

The combined effect of the two proposed amendments will be to accord a very low priority to rectification of the defects in current copyright law. The end result will almost certainly be the loss of any remaining opportunity to re-negotiate inalienable moral rights or proper sanctions against copyright infringement, which could be raised if Clause 43 is deleted, and upon which point all photographers’ organisations, the NUJ, BAPLA, Getty Images and others are unanimous.

We have already stated that we wish to be given the opportunity to introduce new thinking into this debate. Your amendments will deny us that opportunity.

Our new thinking will provide the “cultural sector” with what it says it needs. Sadly, we cannot necessarily provide what it wants, or what it might like, because the economic consequences of those wants and likes will probably terminate our businesses, and professional careers with them. The “cultural sector” - museums, galleries and libraries - collect, conserve and curate cultural artefacts. What task will they leave to future conservators if their scorched-earth wants and needs wipe out the current generation of professional creatives?

We believe that there is no viable middle way. We call upon the Liberal Democrats to withdraw their proposed amendments and act now to remove Clauses 43 and 46 from the Digital Economy Bill.

"Illegal" election poster viral now available

stop43.org.uk@me.com — 2010-04-04T14:15:00+01:00

Here it is. What a gift. Use of the background image, a publicity shot, for advertising in this way almost certainly breaches the terms of its PR licence.

People wonder why photographers make such a noise about breach of copyright, Orphan Works and Extended Collective Licensing. This is exactly the kind of “misrepresentation” that these schemes will promote.

If Labour and Conservative parties can't even understand normal licensing procedure themselves, then how can they be trusted to legislate changes to it?

They've done it again

stop43.org.uk@me.com — 2010-04-05T11:00:00+01:00

It isn’t the first, and now that the copyright-ignorant “everything on the Net’s free - I can just use it in mashups” Internet Generation is active in political campaigning, it won’t be the last. The Labour Party has breached another photographer’s copyright. They have used, unlicensed, a heavily retouched copy of the iconic David Cameron image. Labour’s original poster is here.

The Tories have an exclusive Worldwide licence in Perpetuity to use this image of David Cameron, but the copyright remains the photographer’s. How do we know? The photographer who shot this famous “airbrushed” image is a friend of ours. (In the original photograph Cameron’s face isn’t actually retouched at all - he happens to look like that when well lit by a top-end photographer).

It is inconceivable that the Tories would have licenced the image to the Labour Party for use in a party political poster.

This poster is a de facto breach of copyright under the Copyright, Designs and Patents Act 1988, perpetrated by the same Government that on Tuesday April 6th wishes to grant itself powers enabling legally illiterate, ill-considered changes to that very Act.

Clause 43 of The Digital Economy Bill originated at the Intellectual Property Office, headed by The Rt Hon David Lammy MP, Minister of State for Higher Education and Intellectual Property, who has a Master’s Degree in Law from Harvard University.

"Ashes to Ashes" election campaign posters probably breach copyright. The proof? A mouse mat

stop43.org.uk@me.com — 2010-04-04T10:00:00+01:00

The Labour Party yesterday released a poster based on the character Gene Hunt from the BBC series Ashes to Ashes. The Times Online says:

“The poster, designed by a member of the public, shows the Conservative leader’s head super-imposed onto the body of the popular character [Gene Hunt] from BBCs Ashes to Ashes. He is leaning on the bonnet of Hunt's trademark Audi Quattro next to the slogan, “Don’t let him take Britain back to the 1980s.” Hunt, played by Philip Glenister, is famous for his no-nonsense, politically incorrect style.”

The Conservative Party immediately issued a derivative poster with a different shot of David Cameron’s face superimposed, and the slogan replaced with “Fire up the Quattro. It’s time for change”.

Today, Sky News reports that Philip Glenister is not happy with the way the ads have been used.

According to the Telegraph, the idea for this image was only conceived of last week:

“Labour’s Ashes to Ashes poster was created by Jacob Quagliozzi, 24, a Labour supporter from St Albans, who entered a competition organised by the party’s advertising agency, Saatchi & Saatchi, which invited supporters to meet a brief posted online last weekend.”

The red 1980’s Audi Quattro featured in the image is extremely rare and has been positively identified as the one used in the show by a specialist car photographer (we’re photographers, remember: we know these things). Startled by the remarkably short time in which to find and photograph for the campaign the very vehicle used in the show (we’re photographers, remember: we know these things), we suspected that a promotional shot for the series had been used instead.

We were right. The image is all over the Internet. We have even found the original picture for sale on eBay being used as a mouse mat image. Comparison of the angle of shot, reflections in the car’s bonnet, “Hunt’s” stance, creases in clothing, etc. confirm our suspicion.

Ashes to Ashes is written by Monastic Productions, produced by Kudos Film & Television and distributed by BBC Worldwide. A publicity still from the series is posted here, credited “(c) Kudos Film & Television/Monastic Productions - BBC” - thereby stating that all three companies are rights holders in this image.

We would like to know:

1. Does the Labour Party have a Licence to Use this image for this purpose? This is a publicity (PR) picture - a PR Licence does not normally permit use for party political advertising. We won't know unless and until someone produces a Licence to Use, and whether that Licence includes advertising. If not, they are in breach of copyright.

2. If they do have such a Licence, from whom did they obtain it? Monastic Productions, Kudos Film & Television or BBC Worldwide?

3. Why was it granted? On the evidence of this picture, the BBC almost certainly holds rights in all publicity images from the series. The BBC is prohibited by its charter from engaging in partisan political activity.

3. Has the Conservative Party also licensed the image from the rights holders for this purpose? Again we won't know unless and until someone produces a Licence to Use, and whether that Licence includes advertising. If not, they are in breach of copyright.

4. If they have licensed it, how, on a Bank Holiday? Of the three probable rights holders in the image, only the BBC is likely to have licensing staff working over the Easter weekend.

5. Does Philip Glenister’s contract allow the use of his image and performance for party political purposes without his prior permission?

6. Ashes to Ashes is broadcast by the BBC, which appears to hold rights in publicity images drawn from it. Why has the BBC allowed this image to be appropriated for party political purposes in this way? Furthermore, “Quattro” is a Volkswagen Registered Trade Mark. Has the Conservative Party obtained Volkswagen’s permission to use it?

Monastic Productions and Kudos Film & Television can also be held to account - did BBC Worldwide really grant them rights to licence stills for political advertising? Or is the series entirely the production companies’ Intellectual Property - did they merely grant BBC Worldwide distribution rights? Either way, the production companies have shown very poor judgement and arguably brought the BBC into disrepute, raising questions about the BBC's handling of external productions and associated Intellectual Property.

Similar questions can be asked over use of the show’s footage in a YouTube video.

BBC Worldwide is known to harbour ambitions of becoming a licensing body for Orphan Works and collecting society for Extended Collective Licensing.

People wonder why photographers make such a noise about breach of copyright, Orphan Works and Extended Collective Licensing. This is exactly the kind of “misrepresentation” that these schemes will promote.

If Labour and Conservative parties can't even understand normal licensing procedure themselves, then how can they be trusted to legislate changes to it?

"Why is my baby advertising loo roll?"

stop43.org.uk@me.com — 2010-04-03T18:30:00+01:00

A new viral kindly submitted to us by a supporter, Laura Marsland, yet again illustrates the dangers of both misrepresentation and breach of privacy within the provisions of Clause 43.

In the UK, the use of images of people in advertisements and thereby endorsing products and services must have their subjects’ prior permission in the form of industry-standard signed Model Releases, which act as a contract between the subject and photographer.

If orphan images are used in advertising, it cannot be known whether their subjects have given permission in this way. Furthermore, there is no-one for a subject to sue for damages if their image is used in a way in which they don’t agree and have not or would not give permission. By definition, the photographers who created the photographs and hold the model releases if they exist, cannot be found.

Welcome to the future, everyone, if you fail to help prevent Clause 43 of the Digital Economy Bill from becoming law.

Liberal Democrats propose amendments to Clause 43 for Second Reading

stop43.org.uk@me.com — 2010-04-03T15:45:00+01:00

The Liberal Democrats will try to introduce these amendments to Clause 43 on Tuesday, when it receives its Second Reading, and probable wash-up, in the House of Commons.

Don Foster MP, Liberal Democrat Shadow Culture, Media and Sport Secretary, and Olympics, has said in an email to Stop43:

“The LibDem team is clear that many of the bits of clause 43 are important BUT that the particular case of photography has got wrapped up in it in a way which isn't right... we are trying to do something more immediately and are seeking amendments to remove photography from the legislation. They are listed below.”

Exempt recent photography from orphan works licensing

* Clause 43, page 52, line 20, at end insert 'subject to subsection (1A) below.

(1A) The regulations may not authorise the grant of a licence in respect of works of photography created after 1950.'

Exempt photography from extended licensing

* Clause 43, page 53, line 7, at end insert -

', or

(c) in respect of works of photography.'

We recognise and appreciate the good intentions behind this attempt. Unfortunately, the road to hell is paved with good intentions.

1. The Liberal Democrats reckon that they can tell a photograph made after 1950 from one made before. How? Carbon dating? Does this mean therefore that the Liberal Democrats now consider that it is reasonable to allow the use of orphan works while allowing them to continue to be mass produced? This is the fundamental flaw with Clause 43, and why at this stage, and because of Government's truncation of due Parliamentary process, we believe its removal is the only viable option.

2. The Liberal Democrats want to exempt photography from Extended Collective Licensing. That is a substantial improvement on the current wording but leaves no door open to re-negotiate inalienable moral rights or proper sanctions against copyright infringement, which could be raised if Clause 43 is deleted, and upon which point all photographers’ organisations, the NUJ, BAPLA, Getty Images and others are unanimous.

3. Stop 43 and EPUK were informed last Monday, 29th March, that there was little or no chance of further amendments being made to the Bill - only wholesale removal of clauses or subclauses. How confident are the Liberal Democrats of getting their amendments read, voted on and incorporated?

4. If the Liberal Democrats fail in their attempt, what is their fallback position? Enact Clause 43 or delete it? Please forgive us, but we have little faith in the implementation of assurances given by the present Government, won as concessions in return for the withdrawal of Lord Clement-Jones’ Amendment to remove Clause 43.

After the Second Day of the Lords Report Stage Lord Clement-Jones, Liberal Democrat Spokesperson for Culture, Media and Sport, wrote the following to EPUK about the briefing paper we sent to him and his use of it in his Amendment to remove Clause 43:

“I certainly did base my remarks on your paper-immensely useful. It's always annoying to have to pull punches and not be able to vote but we wouldn't have won sadly. That means I just had to make threats about how we would scrutinize the regulations, and we will. In practice I think if you keep up the campaign they will find it very difficult to include commercial photographers in the Orphans works regulations.”

We read that as saying that the Liberal Democrats wanted Clause 43 removed but felt that they would not have won a vote in the Lords if they had insisted upon it. Why has their position subsequently changed?

We believe that there is no viable middle way. We call upon the Liberal Democrats to withdraw their proposed amendments and act now to remove Clauses 43 and 46 from the Digital Economy Bill.

As concerned photographers we, and we hope other photographers and creatives, recognise that there are legitimate "cultural" uses for orphan works and are eager to help. Given that this is probably the first occasion on which creatives en masse have had their views properly heard in this debate (as distinct from their "representatives", the "creative industries"), we wish to be given the opportunity to introduce new thinking into this debate. We are willing and ready to help start building a new primary-legislation Bill to replace Clause 43, and to define and implement our new thinking.

BBC posts story perfectly illustrating misrepresentation

stop43.org.uk@me.com — 2010-04-02T23:30:00+01:00

Headlined Artist's impression causes copyright blunder, the story describes how a design company breached the copyright of dozens of photographers by incorporating elements of their copyright work, without permission, into a visualisation of a planned city-centre development.

The computer-generated artistic impression was commissioned by Stoke-on-Trent City Council “...for the East West Centre team to give residents an idea of what the new leisure and retail complex will look like", and shows the likes of Jude Law and Barack Obama shopping, among many other “celebrities”.

Whereas none of these prominent people might themselves object to shopping at the new Centre, they might well have good reasons not to publicly promote it. In other words, this picture is likely to misrepresent their views

A welcome to the future to all of them, if they fail to help prevent Clause 43 of the Digital Economy Bill from becoming law.

Copycat viral depicts Big Media as the winners if Clause 43 becomes law

stop43.org.uk@me.com — 2010-04-02T17:00:00+01:00

Clearly inspired by the style of Stop43’s “viral” images illustrating intractable problems with Clause 43, an image has been posted to Flickr depicting Rupert Murdoch, Chairman and Managing Director of News International, and Mark Thompson, Director-General of the BBC, in fake advertisements apparently promoting gambling.

SEE IMAGE

As with our viral image “Only The Best”, this image also points out the dangers of misrepresentation in Orphan Works and Extended Collective Licensing. The image is apolitical, not derogatory and not libellous: the Chinese text translates as “Think Big, Win Big!”; the Russian text as “Think Win Big”, according to Google Translate.

In the UK, the use of images of people in advertisements and thereby endorsing products and services must have their subjects’ prior permission in the form of industry-standard signed Model Releases, which act as a contract between the subject and photographer.

If orphan images are used in advertising, it cannot be known whether their subjects have given permission in this way. Furthermore, there is no-one for a subject to sue for damages if their image is used in a way in which they don’t agree and have not or would not give permission. By definition, the photographers who created the photographs and hold the model releases if they exist, cannot be found.

Gambling is legal in the UK. However, given their prominent public positions in the UK, it is unlikely that either Mr. Murdoch or Mr. Thompson would have given permission for their portraits to be used to endorse it in such a way - these “advertisements” are likely to misrepresent their views.

Welcome to the future, Gentlemen, if you fail to help prevent Clause 43 of the Digital Economy Bill from becoming law.

NUJ London Photographers' Branch votes against Clause 43

stop43.org.uk@me.com — 2010-04-01T10:00:00+01:00

At their meeting on March 30th the NUJ London Photographers' Branch passed the following motion:

“This Branch backs the Stop 43 campaign to knock Clause 43 out of the Digital Economy Bill, condemns this government's attempt, in its last days, to force this highly controversial measure through the House of Commons without any debate, and calls on the next to introduce Moral Rights in full for all creators.”

New viral highlights "misrepresentation"

stop43.org.uk@me.com — 2010-03-31T19:05:49+01:00

A new viral image comprising a pair of mock advertisements points out the dangers of misrepresentation in Orphan Works and Extended Collective Licensing. The image, “Only The Best”, is apolitical and not derogatory: the text reads “When only the very best is good enough”, Google-translated into Russian and Chinese.

Download Printable version

In the UK, the use of images of people in advertisements and thereby endorsing products and services must have their subjects’ prior permission in the form of industry-standard signed Model Releases, which act as a contract between the subject and photographer.

If orphan images are used in advertising, it cannot be known whether their subjects have given permission in this way. Furthermore, there is no-one for a subject to sue for damages if their image is used in a way in which they don’t agree and have not or would not give permission. By definition, the photographers who created the photographs and hold the model releases if they exist, cannot be found.

There is nothing wrong with vodka or skin-care products. However, given their prominent public positions in the UK, it is unlikely that either Lord Mandelson or David Cameron would have given permission for their portraits to be used to endorse these products in such a way - these “advertisements” are likely to misrepresent their views.

Welcome to the future, Gentlemen, if you allow Clause 43 of the Digital Economy Bill to become law.

Copyright Action website suffers apparent denial-of-service attack

stop43.org.uk@me.com — 2010-03-31T13:10:00+01:00

The Copyright Action website appears to be suffering a denial-of-service attack. The site was knocked offline last night because it had breached its bandwidth limit. Investigation has revealed a high level of suspicious web traffic, matching the typical pattern of that caused by an automated attack from a botnet.

What a coincidence that this should happen just when the site’s information is of most use to Clause 43’s opposition, and most damaging to the Clause’s supporters. We wonder what could have caused it.

Copyright Action busts bandwidth limit

stop43.org.uk@me.com — 2010-03-31T09:40:00+01:00

An avalanche of hits on Copyright Action’s pieces Big Money Breaks Cover and Why The IPO Is Wrong have pushed the site over its bandwidth limit this morning. The site is back online again now.

BIS Select Committee members list

stop43.org.uk@me.com — 2010-03-31T00:10:00+01:00

The Business, Innovation and Skills Committee has the task of scrutinising the work of Messrs. Mandelson, Lammy, Timms, and the IPO. They are waiting to hear from you. Please don’t disappoint them.

• Mr Peter Luff, Chair Business, Innovation and Skills Committee
Tel: 01905 763952 / Fax: 01905 330075 luffpj@parliament.uk

• Dr Roger Berry, Labour
Constituency tel: 0117 956 1837 / fax: 0117 970 1363 roger.berry.mp@parliament.uk

• Mr Brian Binley, Conservative
Westminster Tel: 020 7219 8298 binleyb@parliament.uk
Constituency Tel: 01604 633414 / Fax: 01604 250252

• Mr Michael Clapham, Labour
Constituency tel: 01226 731244 / fax 01226 779429 claphamm@parliament.uk
Westminster tel 020 7219 3000

• Mr Lindsay Hoyle, Labour
Constituency tel: 01257 271555 / fax: 01257 277462
Westminster tel: 020 7219 3515 / fax: 020 7219 3831 hoylel@parliament.uk

• Mr Mark Oaten, Liberal Democrat
Constituency Tel: 01962 622 212
Westminster Tel: 0207 219 2703 oatenm@parliament.uk

• Mr Lembit Öpik, Liberal Democrat
Constituency tel: 01686 625 527 / fax: 01686 628 891
Westminster tel: 020 7219 1144 lembitopik@montlibdems.org.uk

• Mr Ian Stewart, Labour
Constituency tel: 0161 707 4688 / Fax: 0161 789 8065 /
Westminster tel: 020 7219 3460 ianstewartmp@parliament.uk

• Mr Anthony Wright, Labour
Constituency tel: 01493 332 291 / Fax: 01493 853 157
Westminster tel: 0207 219 3447 wrighta@parliament.uk

Also

Miss Julie Kirkbride, Conservative
Leaving at the end of this parliament

Ms Anne Moffat, Labour
Recently deselected from Labour party

Authoritiative Briefing Paper invalidates basis of Clauses 43 and 46

stop43.org.uk@me.com — 2010-03-30T23:45:00+01:00

Gillian Spraggs of Action for Authors’ Rights has released a Briefing on the Copyright Clauses in the Digital Economy Bill. Exhaustively researched and finely argued, it is a definitive rebuttal of the entire sorry foundation to Clause 43. It also calls for the removal of Clause 46, a 'Henry VIII' clause that would confer on the executive very wide-ranging powers to modify primary legislation. It is challenging but required reading.

The Money breaks cover

stop43.org.uk@me.com — 2010-03-30T17:00:00+01:00

A letter, originating from The Copyright Licensing Agency and signed by them, the BBC, BFI, PA, ALPSP and ERA, was circulated to MPs today.

All of these organisations are either already licensing bodies or have ambitions to be. Most of them have substantial archives of orphan works and would dearly love to be both judge and jury in self-licensing and setting fees for licensing of their unmonetised gold mines of other peoples’ intellectual property.

“Finally we see the commercial forces behind Clause 43, and that the cultural actors such as the British Library, British Museum, V&A and other museums and cultural institutions, in whose interests Government has purported to impose this stuff, are significantly absent. In other words, it is a smoking gun.” - Copyright Action

What a lot of money and lobbying power these people have.

The letter addresses none of the problems that we illustrate on this site. It addresses nothing that we have illustrated with our viral examples. We were expecting this. It's simply more of the same. They have made no new argument; they're only shouting louder.

The full text of the letter follows:

29th March 2010

Dear Lord Mandelson, David Lammy, Stephen Timms, Jeremy Hunt, Ed Vaizey, Adam Afriyie and Don Foster

DIGITAL ECONOMY BILL CLAUSE 43

As you are aware, the draft legislative provisions to enable the licensing of orphan works and extended collective licensing schemes have been the subject of intense debate and detailed amendment during the passage of the Digital Economy Bill through the House of Lords.

As the Bill awaits its Second Reading in the Commons, these provisions remain imperfect. But they are a significant improvement on the original Clause 42. As a satisfactory compromise between diverse interests, they should be considered a success.

A nuanced debate of the strengths and weaknesses of the Clause is now academic. The opportunity has passed for it to be amended further. But there is still a real danger that the Clause could be jettisoned altogether, during the wash-up.

We believe this outcome would be catastrophic for the creative industries. The strategic importance of making orphan works available and, for some industries, enabling extended collective licensing schemes, cannot be overstated. Failure to make orphan works available is likely to result in far cruder alternative solutions, which would run the risk of contravening the Berne 3 step test, and which would have far-reaching and damaging consequences for our sectors.

There will be many opportunities to engage in depth with the consultations and regulations which will be brought forward under Clause 43, and we look forward to doing so.

In the meantime, we would urge you to seek the consensus necessary to ensure that Clause 43 stays in the Bill.

Yours sincerely

Kevin Fitzgerald, Rob Kirkham, Amanda Nevill, Simon Juden, Ian Russell, Helen Nicholson
CLA BBC BFI PA ALPSP ERA
kevin.fitzgerald@cla.co.uk
rob.kirkham@bbc.co.uk
sjuden@publishers.org.uk
ian.russell@alpsp.org
hnicholson@era.org.uk

Key MPs to lobby - Labour MPs added

stop43.org.uk@me.com — 2010-03-28T23:00:00+01:00

These MPs will all be key players in the negotiations over the Digital Economy Bill in the wash up. The Bill, and Clause 43, will either pass or fall down with their veto. It doesn't matter if they are not our local MPs; we also can write to them directly in their capacity as Shadow Ministers, Committee Chairs and Party Whips. Be aware that letters sent directly to Ministers will be ignored - they must be forwarded by constituency MPs.

Conservatives (potentially supportive)

• Kenneth Clarke, Shadow Secretary of State for Business
Tel: 0115 981 7224 / Fax: 0115 981 7273 clarkek@parliament.uk

• Jeremy Hunt, Shadow Secretary of State for Culture, Media and Sport
Tel: 0207 219 6813 / Jeremy@localconservatives.org

• Peter Luff, Chair Business, Innovation and Skills Committee (this committee scrutinises the dept for Business, Innovation and Skills that sponsored DEB)
Tel: 01905 763952 / Fax: 01905 330075 luffpj@parliament.uk

• John Whittingdale, Chair Culture, Media and Sport Committee (already very critical of the bill)
Tel: 01621 855663 / Fax: 01621 855217 jwhittingdale.mp@tory.org.uk

• Patrick McLoughlin, Opposition Chief Whip in the House of Commons
Tel: 020 7219 3511 patrick.mcloughlin.mp@parliament.uk

• Andrew Robathan, Deputy Opposition Chief Whip in the House of Commons
Tel: 01455 283594 / Fax: 01455 286159 southleicscons@btconnect.com

Liberal Democrats (wavering - trying to amend rather than remove Clause 43)

• John Thurso, Shadow Secretary of State for Business
Tel: 0131 337 2314 thursoj@parliament.uk

• Don Foster, Shadow Culture, Media and Sport Secretary, and Olympics
Tel: 01225 338 973 / Fax: 01225 463 630 fosterd@parliament.uk

• Paul Burstow, Chief Whip
Tel: 020 8288 6553 / Fax: 020 8288 6550 paul@paulburstow.org.uk

and opposition Members of the Culture, Media and Sports Committee
and the Business, Innovation and Skills Committee, very important as it’s believed that they would be the ones to scrutinise the bill in Commons Committee stage were it not being washed up.

Labour (must vote with Government, so need persuading to change Government position)

• The Rt Hon Lord Mandelson, First Secretary of State, Secretary of State for Business, Innovation and Skills and Lord President of the Council
Tel: 020 7215 5621 / fax: 020 7215 5468 mpst.mandelson@bis.gsi.gov.uk

• The Rt Hon David Lammy MP, Minister of State (Higher Education and Intellectual Property) Leads on Intellectual Property issues and the Intellectual Property Office. David Lammy was previously Minister for Culture at the DCMS and according to his biography was a champion of museums and public libraries during his time there
BIS Office tel: 020 7215 5923 mpst.lammy@bis.gsi.gov.uk
Alternative parliamentary contacts: tel: 020 7219 0767 / ax: 020 7219 0357 mail@davidlammy.co.uk http://twitter.com/davidlammymp http://www.facebook.com/pages/David-Lammy-MP/19129786540

• The Rt Hon Stephen Timms MP, Parliamentary Under-Secretary of State (Minister for Digital Britain) Leads on: Digital Britain, Communications and content industries, including creative industries; and IT and electronics sector
BIS Office tel: 020 7215 5229 mpst.timms@bis.gsi.gov.uk
Alternative parliament contact: tel: 020 7219 4000 / fax 020 7219 2949 stephen@stephentimms.org.uk http://twitter.com/stephenctimms

The above are all at the Department for Business Innovation and Skills 1 Victoria Street, London SW1H 0ET

• The Rt Hon Ben Bradshaw MP, Secretary of State for Culture, Media and Sport (previously BBC correspondent for Berlin and still a member of the NUJ) (Exeter)
Constituency contacts Tel: 01392 424 464 / Fax: 01392 425 630
Parliamentary contacts Tel: 0207 219 6597 Fax: 0207 219 0950 bradshawb@parliament.uk http://twitter.com/BenPBradshaw

• The Rt Hon Margaret Hodge MBE MP, Minister of State Leads on: Museums and Galleries, Libraries, Creative industries
Constituency contacts Tel: 020 8594 1333 / Fax: 020 8594 1131
Parliamentary contacts Tel: 020 7219 3000 hodgem@parliament.uk http://twitter.com/margarethodge

The above two are at the Dept for Culture, Media and Sport

• The Rt Hon Harriet Harman QC MP, Leader of the House of Commons, Lord Privy Seal Minister for Women and Equality
26 Whitehall, London SW1A 2WH
Tel: 020 7276 1005 Fax: 020 7276 1006 Leader@CommonsLeader.x.gsi.gov.uk

"Diligent search" a red herring

stop43.org.uk@me.com — 2010-03-28T22:50:00+01:00

"The extended licensing provisions will apply to works whose rights-holders are traceable, as well as to orphan works. The Secretary of State may authorize a licensing body to license works for use even in cases where the author is not a member of the body and has not delegated any authority to that body to act as his or her agent.

The extended licensing provisions contain no requirement that the licensing body, or the person obtaining a licence, should carry out a search for holders/owners of rights who are not members of the licensing body. This is in distinction to the orphan works provisions, under which (in theory) no use may be made of a work until a diligent search for the rights-holders has been conducted." - Action on Authors Rights

There is a lot of assertion by Labour MPs of the requirement for a “diligent search” to be carried out before an orphan work can be licensed, and the “substantial financial penalties” to be meted out to those proven to have failed to search diligently. Here’s an example, written by David Lammy’s Intellectual Property Office and regurgitated by Michael Wills in reply to a letter from a constituent:

“it is not the case that the legislation says that ‘if someone finds your photograph, wants to use it and decides that they can't trace you, they can do whatever they like with it after paying an arbitrary fee’, as the Stop43.org website claims. Anyone wishing to use an image will have to conduct a diligent search for the owner of the right, and failure to do so would result in revocation of permissions and liability for substantial financial penalties.”

Except that they don’t, and won’t. In the Bill is currently drafted:

• There is no provision that demands that the licensing society and the potential user must both carry out diligent searches, or even that either of them must: the only requirement is that they reasonably believe that someone has.
• There is no statement at all in the Bill as to what happens should the author come forward, except that he/she gets paid - something.
• Furthermore, under subclause 116D(7) the Secretary of State can waive the requirement for a diligent search, and even the requirement that if the author is found, the work must be removed from the orphan works register(s) - seriously, that is really what it says.

So all you have to do is to say “There’s been a diligent search, I’m sure there has”; to which the licensing society can reply “We believe you. Here’s a license. That’ll be a quid - the rate you’d have paid on a microstock site. Now run off and do with it what you will.”

The devil, as always, is in the details.

Next: The “Market Rate” Myth

Digital Economy Bill - Google to be the big winners?

stop43.org.uk@me.com — 2010-03-28T14:00:00+01:00

Copyright Action have posted an excellent piece on campaign group Action on Authors Rights, pointing out Google as the big winner in the endgame:

“...on the site is the best coverage of the Google Books deal that we have seen anywhere. The resemblance between Google's attempts to seize control of other peoples' copyright work, and Extended Collective Licensing, which allows publishers to do exactly the same with any work within their reach, should not be understated. Here it is not.

As author Gillian Spraggs says at the site "Every age gets the culture that it pays for: pays for in money, and pays for in respect." We have always felt that the ultimate benefit of ECL will fall eventually to Google, not the publishers who hope to grab their own little piece of the same action via the DEB. That may be a temporary advantage over creators, but the public thirst for free will ensure Google wins. At some point Government is going to have to deal with Google itself adopting extended collective licensing and orphan works rights.

By giving the publishing lobby what it thinks it wants, Government may in fact be easing the success of the Google project of owning and exploiting all content it can get to. We have here an out of control food chain driven by power and greed and no sense of ecological sustainability. We believe it means economic extinction for most professional creators. We believe it means amateur content will be seized and abused. And now we wonder how long publishers will last, once Google has the means to subvert their exclusive copyright, using the same law they have wrought to subvert ours.”

David Lammy's creative letter

stop43.org.uk@me.com — 2010-03-27T23:55:00+00:00

A photographer in Alistair Darling’s constituency has received the following, attached to Darling’s reply to his letter. Extracts have also appeared in other Labour MPs’ letters to their constituents, such as that from Michael Wills:

Dear Alistair

Thank you for your letter ... enclosing correspondence from your constituent xxx xxxxx... I am replying as Minister for Higher Education and Intellectual Property.

I am aware of the concern held by some photographers that orphan works legislation will create a means for content users to appropriate content at an unfairly low cost or for free. I would like to take this opportunity to reassure you that this is absolutely not the case. If any orphan works schemes are created that cover photographic works then any use of an orphan work under such a scheme can only take place after a properly diligent search has been carried out [he should read this]. The use will also require payment of a fair licence fee [and then this], and this fee will be held safely and available to be claimed by the rightful owner should they come forward. [And if they don’t, what becomes of the money? Does it go bona vacantia to the Treasury? No-one knows for sure - it’s not defined in the Bill. In time this could become a substantial pot of money.]

The Government's intention is that there should be no financial advantage from mis-identifying a work as an orphan work and that deliberate or negligent mis-identification should carry an appropriate penalty [read this again please, David].

Nothing in the Bill alters a photographer's ownership of copyright or moral rights in their work, or interferes with their licensing arrangements for that work. [Nothing is in the Bill to do that. The Bill confers powers for that to be done later in secondary legislation without proper parliamentary debate.]

As these concerns have been raised by a number of MP's and photographers, the Intellectual Property Office has published a web page which contains detailed information about the proposals. I believe this webpage addresses the issues raised by your constituent, and I would be grateful if you could pass on the following link:

http://www.ipo.gov.uk/pro-types/pro-copy/c-policy/c-policy-orphanworks /c-policy-orphanworks-photo.htm

[And then he really should read this.]

I hope this information is helpful

Signed

David Lammy

The Rt Hon David Lammy MP, Minister of State for Higher Education and Intellectual Property has a Master’s Degree in Law from Harvard University.

Action on Authors’ Rights

stop43.org.uk@me.com — 2010-03-27T21:30:00+00:00

Action on Authors’ Rights is a grassroots group set up to campaign in the UK in support of authors’ rights. They have a simple, straightforward and equitable manifesto:

Authors have the right to

• have their intellectual property protected by the state
• have their moral rights properly acknowledged and protected by the state
• decide whether and where they are going to publish, and in what format(s)
• freely negotiate their own publishing contracts and licensing agreements
• negotiate in person, or through agents of their own choice, as they prefer

They have excellent analysis and authoritative quotations on the subjects of Orphan Works and Extended Collective Licensing, their probable effects on authors’ and creators’ well-being, and the likely drivers behind the attempt to legislate for them in Clause 43. Here is an example:

"This clause could potentially destroy the principle of direct licensing, which is the most efficient means of ensuring that a rights holder is remunerated exactly and properly for the use of their work, and lose creators the right to control their own economic and moral rights.” – Paul Brown, Chairman of the British Association of Picture Libraries and Agencies (BAPLA)

They have an email list and a Facebook group: to join, email the organizer. Please join them.

The Privacy and Exclusivity Problems

stop43.org.uk@me.com — 2010-03-27T17:15:00+00:00

Privacy

Photographs commissioned from wedding, portrait and social photographers for private purposes are prevented from publication without permission of the subject by the Copyright, Designs & Patents Act 1988. Many photographers working for charities in sensitive areas do so with the explicit agreement that use of the photographs will be restricted to appropriate contexts, with all other uses being prohibited. Some children depicted in such photographs could be Wards of Court or on the At Risk register and have special privacy rights.

Exclusivity

Commercially-produced imagery usually includes models and proprietary artefacts, whose consents and fees have been based on limited, deﬁned usages of those photographs - other usages would have commanded extra fees. The photograph's copyright holder or other stakeholders in the image such as models, their agencies and others might have commercial, political, religious, moral or ethical objections to some possible uses to which the picture might be put, and if permission were sought, would refuse that permission under all circumstances. The client for whom the photograph has been made is likely to have contracted for exclusive use.

Provisions in Clause 43 will probably undermine the ability of UK professional photographers to undertake exclusive contracts, since it will never be possible for them to guarantee that their work will not be orphaned and may be licensed to third parties including competitors.

These rights of exclusivity are guaranteed by international law, Article 9 of The Berne Agreement and Article 13 of TRIPS [the trade-related aspects of intellectual property rights, Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization], to both of which The UK is signatory, both of which forbid the enactment of domestic legislation that allows any kind of licensing scheme "which conﬂicts with normal exploitation of the work" or will “unreasonably prejudice the legitimate interests of the author” (reasonably interpreted as meaning that the rights holder must be able to control, limit and directly benefit from the work’s exploitation).

By definition, it is impossible for a licensee of an orphan photograph to know conclusively whether or not any of this applies. No statement issued by the Government or Intellectual Property Office and repeated by an MP has satisfactorily addressed this concern.

Next: What is a”diligent search”?

The "Market Rate" Myth

stop43.org.uk@me.com — 2010-03-27T16:45:00+00:00

Labour MP Michael Wills has written the following in reply to a letter from a constituent:

“It is [also] not the case that users will be able to make (sic.) an 'arbitrary fee' to use an image. The Government has made it clear that ‘there should be no financial advantage from mis-identifying a work as an orphan work and that deliberate or negligent mis-identification should carry an appropriate penalty.’ Therefore, any regulations would aim to ensure that licensing of orphan works would be at the market rate.”

There can be no mechanism for determining the accurate market rate for any piece of Intellectual Property such as a photograph without knowledge of its provenance - i.e. who created it, how it was created, for whom, for what purpose, and who owns its copyright. It is well established that artworks lacking provenance cannot be properly valued, and that works previously wrongly attributed, for which the correct artist subsequently has been identified, have been drastically re-valued. Is your rumpled bed worth as much as Tracy Emin’s? Probably not, but if it looked the same to an inadequately-informed observer it might easily be over-valued. The converse might also easily happen.

There can logically be no such thing as a “market rate” for orphan photographs, in the same way that there is no “market rate” for art. Consequently, there can be no mechanism by which a licensing body might determine a “fair license fee” for any specific orphan. It is therefore accurate and correct to describe any such fee as being arbitrary. No statement issued by the Government or Intellectual Property Office and repeated by an MP has satisfactorily addressed this concern.

Next: Misplaced faith in "Consultation"

What is a "Diligent Search"?

stop43.org.uk@me.com — 2010-03-27T17:00:00+00:00

Labour MP Michael Wills has written the following in reply to a letter from a constituent:

“it is not the case that the legislation says that ‘if someone finds your photograph, wants to use it and decides that they can't trace you, they can do whatever they like with it after paying an arbitrary fee’, as the Stop43.org website claims. Anyone wishing to use an image will have to conduct a diligent search for the owner of the right, and failure to do so would result in revocation of permissions and liability for substantial financial penalties.”

The Bill’s proponents have not defined “diligent search” in Clause 43, not because they don’t know, but because a “diligent search” for the creator and owner of a photograph is practically impossible.

Every single day, thousands of photographs are uploaded to Facebook alone in a process that strips them of identifying metadata even if they had originally contained it, and thereby potentially “orphaning” them. Nobody knows how many billions of photos are on the Internet, let alone which are original works of contactable authors. As many as 90% of the billions are infringing copies according to American Society of Media Photographers’ attorney Vic Perlman’s testimony to US Congress in 2007. There is no cursory, let alone diligent, search mechanism for finding their rightful owners. Diligent search would require visual search capabilities that simply do not exist today. Text searches are especially liable to fail given absent bylines and erased metadata. In fact, were there any remotely effective means of identifying owners of orphan images there would be no “huge orphans problem” in the first place and no opportunity to legislate their use.

Government proposes that all licensed works shall be available for inspection in a register, so that revenant authors may reclaim their copyright and a proportion of licensing fees. Photographers are already obliged to expend large amounts of time and effort searching for and deterring infringing use. This register, or registers – the nature and number of which is being deferred until the Secretary of State can hopefully come up with a workable scheme – will demand every photographer in the UK periodically search in case any of his or her work has become orphaned and licensed by third parties. Why is this business burden on photographers acceptable as a means to allow others to use their work?

For an “orphan work licensee” to lose a claim for deliberate orphaning of a photographer’s work it will be necessary to prove that a 'diligent search" has not been carried out. At what point do you decide that your search has been “diligent”? Just how many haystacks are you going to have to say that you have searched, looking for that needle? How are you supposed to search them? What proof are you supposed to offer that you have? And in the improbable event that you lose the claim, to what “substantial financial penalties” will you be subject? The Government has been resoundingly silent on these points after five years of "consultation". No statement issued by the Government or Intellectual Property Office and repeated by an MP has satisfactorily addressed this concern.

Next: it doesn’t matter anyway, because "diligent search" is a red herring

Key MPs to lobby

stop43.org.uk@me.com — 2010-03-26T17:55:00+00:00

These MPs will all be key players in the negotiations over the Digital Economy Bill in the wash up. The Bill, and Clause 43, will either pass or fall down with their veto. It doesn't matter if they are not our local MPs; we also can write to them directly in their capacity as Shadow Ministers, Committee Chairs and Party Whips.

Conservatives (potentially supportive)

• Kenneth Clarke, Shadow Secretary of State for Business
Tel: 0115 981 7224 / Fax: 0115 981 7273 clarkek@parliament.uk

• Jeremy Hunt, Shadow Secretary of State for Culture, Media and Sport
Tel: 0207 219 6813 / Jeremy@localconservatives.org

• Peter Luff, Chair Business, Innovation and Skills Committee (this committee scrutinises the dept for Business, Innovation and Skills that sponsored DEB)
Tel: 01905 763952 / Fax: 01905 330075 luffpj@parliament.uk

• John Whittingdale, Chair Culture, Media and Sport Committee (already very critical of the bill)
Tel: 01621 855663 / Fax: 01621 855217 jwhittingdale.mp@tory.org.uk

• Patrick McLoughlin, Opposition Chief Whip in the House of Commons
Tel: 020 7219 3511 patrick.mcloughlin.mp@parliament.uk

• Andrew Robathan, Deputy Opposition Chief Whip in the House of Commons
Tel: 01455 283594 / Fax: 01455 286159 southleicscons@btconnect.com

Liberal Democrats (wavering - trying to amend rather than remove Clause 43)

• John Thurso, Shadow Secretary of State for Business
Tel: 0131 337 2314 thursoj@parliament.uk

• Don Foster, Shadow Culture, Media and Sport Secretary, and Olympics
Tel: 01225 338 973 / Fax: 01225 463 630 fosterd@parliament.uk

• Paul Burstow, Chief Whip
Tel: 020 8288 6553 / Fax: 020 8288 6550 paul@paulburstow.org.uk

and opposition Members of the Culture, Media and Sports Committee
and the Business, Innovation and Skills Committee, very important as it’s believed that they would be the ones to scrutinise the bill in Commons Committee stage were it not being washed up.

Labour (must vote with Government, so need persuading to change Government position)

• The Rt Hon Lord Mandelson, First Secretary of State, Secretary of State for Business, Innovation and Skills and Lord President of the Council
Tel: 020 7215 5621 / fax: 020 7215 5468 mpst.mandelson@bis.gsi.gov.uk

• The Rt Hon David Lammy MP, Minister of State (Higher Education and Intellectual Property) Leads on Intellectual Property issues and the Intellectual Property Office
BIS Office tel: 020 7215 5923 mpst.lammy.@bis.gsi.gov.uk
Alternative parliamentary contacts: tel: 020 7219 0767 / ax: 020 7219 0357 mail@davidlammy.co.uk http://twitter.com/davidlammymp http://www.facebook.com/pages/David-Lammy-MP/19129786540

David Lammy was previously Minister for Culture at the DCMS and according to his biogaphy was a champion of museums and public libraries during his time there.

• The Rt Hon Stephen Timms MP, Parliamentary Under-Secretary of State (Minister for Digital Britain): Leads on: Digital Britain, Communications and content industries, including creative industries; and IT and electronics sector
BIS Office tel: 020 7215 5229 mpst.timms@bis.gsi.gov.uk
Alternative parliament contact: tel: 020 7219 4000 / fax 020 7219 2949 stephen@stephentimms.org.uk http://twitter.com/stephenctimms

The above are all at the Department for Business Innovation and Skills 1 Victoria Street, London SW1H 0ET

• The Rt Hon Ben Bradshaw MP, Secretary of State for Culture, Media and Sport (previously BBC correspondent for Berlin and still a member of the NUJ) (Exeter)
Constituency contacts Tel: 01392 424 464 / Fax: 01392 425 630
Parliamentary contacts Tel: 0207 219 6597 Fax: 0207 219 0950 bradshawb@parliament.uk http://twitter.com/BenPBradshaw

• The Rt Hon Margaret Hodge MBE MP, Minister of State Leads on: Museums and Galleries, Libraries, Creative industries
Constituency contacts Tel: 020 8594 1333 / Fax: 020 8594 1131
Parliamentary contacts Tel: 020 7219 3000 hodgem@parliament.uk http://twitter.com/margarethodge

The above two are at the Dept for Culture, Media and Sport

New virals emphasise privacy and licensing problems

stop43.org.uk@me.com — 2010-03-26T18:00:00+00:00

Two new virals have been posted, emphasising privacy problems and the impossibility of establishing a proper licensing value for orphan photographs. Please share them freely. “Who’s That Girl?” is particularly appropriate for attaching to emails to Parliamentarians.

Scrutiny Unit not taking written evidence before washup

stop43.org.uk@me.com — 2010-03-26T17:09:04+00:00

From the Scrutiny Unit

Digital Economy Bill Update

The Digital Economy Bill will receive its second reading in the House of Commons on 6th April 2010. Unfortunately, due to the forthcoming election there is insufficient time for this Bill to go to a Public Bill committee, and so we will NOT be taking written evidence.

You may want to raise your concerns about the Bill with your MP and ask them to take the issues forward in the debate on 6th April.

You may also want to contact the All Parliamentary Group on Photography who may be in attendance at this debate.

Finally, you could try contacting any other All Party Group which may have an interest in this Bill. The full list of these groups can be accessed via this link (subject topics are listed after the country headings).

Digital Economy Bill will not undergo Committee stage before washup

stop43.org.uk@me.com — 2010-03-26T14:40:00+00:00

The Digital Economy Bill will not undergo scrutiny by the Public Bill Committee before its simultaneous Second Reading and vote into law in the washup that precedes the dissolution of Parliament prior to the General Election.

According to the Scrutiny Unit, Public Bill Committee planning anticipate that Parliament will be dissolved close to the Bill’s Second Reading and that therefore it will not enter Committee stage, as there would be no committee available to convene.

The normal schedule would be Second Reading -> 1 week after, Committee formed -> 3-4 weeks of line by line examination. But that's not what will happen here. Committee planning are therefore not accepting written submissions.

No wonder John Whittingdale MP has said what he has about the constitutional legitimacy of this procedure.

Misplaced faith in "Consultation"

stop43.org.uk@me.com — 2010-03-27T16:30:00+00:00

Labour MP Michael Wills has written the following in reply to a letter from a constituent:

“In any event, as the article you forwarded states, much of the detail is yet to be decided by public consultation. Consultations cannot be ignored by the Government, as the article alleges, and it is a requirement of the Consultation Code of Practice that consultation responses should be analysed carefully and clear feedback should be provided to participants so that they can see how the responses influenced policy.”

An Allegory

A large media company wants to paint the south-facing wall of their big building. They want it black so that their new “green” heating system can use solar heat from the black wall, cutting costs and their carbon footprint. They approach the Council.

Residents in the creative work/live units opposite hear about this and realise that the black wall will make their units depressingly gloomy, making it hard for them to work, forcing them to keep their lights on and considerably increasing their carbon footprint. They'd rather have a white wall. They approach the Council. The Council carry out a "consultation".

Question. What colour does the wall get painted?* - because it cannot be both at once:

a. Black
b. White

Of course consultation cannot be "ignored", but the final decision is not legally bound to implement all points raised during "consultation", as Lord Fowler pointed out about the "consultation" process around BBC governance that resulted in the barely-workable BBC Trust system, which he says most of those consulted had warned against.

“Consultations” on changes in copyright law, started by the Gowers Review and continued by the Lammy Review, have been going on for more than five years, and yet it seems that “unanticipated consequences” of Clause 43 just keep on emerging.

Problems concerning privacy and the rights of subjects within photographs, exclusivity of use, the practical impossibility of carrying out a “diligent search” and proving that one has or has not been carried out, and of establishing a “market rate” for commercial licensing of photographs of unknown provenance will not simply evaporate as a consequence of “public consultation”.

Are all of these consequences really unanticipated? Or have they in fact been anticipated by the Bill’s proponents and authors but regarded as acceptable collateral damage in the pursuit of the Bill’s primary aims?

*(Answer: Black, of course. Don’t be naïve.)

Stop43.org.uk Facebook group tops 1,100 members

stop43.org.uk@me.com — 2010-03-26T00:05:00+00:00

From a standing start less than a week ago, the Stop43.org.uk Facebook group now has more than 1,100 members.

Getty Images opposes Clause 43 in joint statement

stop43.org.uk@me.com — 2010-03-25T23:05:19+00:00

Getty Images, a new and powerful voice in the Orphan Works debate, today announced its concerns over the provisions in Clause 43 by signing a statement drafted by BAPLA and jointly released by

• The Association of Photographers (AOP)
• British Association of Picture Libraries and Agencies (BAPLA)
• Design and Artists Copyright Society (DACS)
• National Union of Journalists (NUJ)
• The Royal Photographic Society (RPS)
• Getty Images

Understandably couched in diplomatic language, the statement nonetheless makes clear that

“content creators, rights holders and the imaging industry continue to have concerns about the practical implementation of the Bill’s intentions and also whether it will hinder, rather than enhance, the wider digital economy”.

It is gratifying to see another industry alliance emerge to complement stop43.org.uk in publicly questioning the supposed benefits to be bestowed upon the imaging industry, photographers, and the general public by the Bill’s provisions.

We would hope that the fact that a $2 billion corporation such as Getty Images, a dominating force in the photographic industry, should be voicing its concern in this public manner will not be lost on Clause 43’s avid proponents in the Intellectual Property Office, BIS and elsewhere and give them pause to consider the practically unworkable nature of their current proposals.

FULL STATEMENT TEXT

Digital Economy Bill Second Reading and probable wash-up on 6 April

stop43.org.uk@me.com — 2010-03-25T20:20:00+00:00

The Digital Economy Bill was presented to the Commons on 16 March 2010. This is known as First Reading and there was no debate on the Bill at this stage. This Bill will be on the Order Paper for a Second Reading debate on 6 April 2010.

Still no news on when the Bill will enter the Committee stage, or for how long it will last.

The Society of Wedding and Portrait Photographers joins stop43.org.uk

stop43.org.uk@me.com — 2010-03-25T18:15:00+00:00

A warm welcome to SWPP and BPPA, a voice previously unheard in this debate.

John Whittingdale MP, Culture Media and Sport Select Committee Chairman, objects to the DEB's rush through Parliament

stop43.org.uk@me.com — 2010-03-25T18:00:00+00:00

The BBC reports that

“At least one influential voice - Culture Media and Sport Select Committee Chairman John Whittingdale - is saying it would be a constitutional outrage to force such provisions through without proper scrutiny by MPs, on the strength of a few hours debate at Second Reading. Lawmaking should not be so perfunctory, he argues.”

Quite so.

The National Union of Journalists joins stop43.org.uk

stop43.org.uk@me.com — 2010-03-25T16:40:00+00:00

Following the NUJ's Freelance Industrial Council vote by a substantial majority to back Stop43.org.uk, their decision has been ratified and we are pleased to have their substantial membership and powerful voice added to the campaign. A warm welcome to them.

No. 10 Petition against copyright reform in the Digital Economy Bill passes 5000 signatures

stop43.org.uk@me.com — 2010-03-24T13:30:00+00:00

“We the undersigned petition the Prime Minister to Abandon plans to amend copyright protection for photographers which effectively amount to nationalisation of photography.”

The petition, started by Darren Hector, further states:

“We call on the Government to abandon plans, announced on 29 October 2009, to allow free and unhindered reproduction of photographs without payment or credit on non-commercial websites.

This is completely at odds with the Government's stance on file sharing of other forms of intellectual property (films and music) and raises the prospect of crippling thousands of small businesses while protecting large corporate interests.

The proposal uses phrases like "It must be seen to benefit all parties, not some at the expense of others" and yet the Government's proposal does exactly that. It takes the work of photographers who have invested time and money in creating work, and gives it to people who have no relationship with that work, for free.

Photographic businesses are already under severe strain and the proliferation of digital cameras gives the impression that creating professional quality imagery is easy. This will further devalue the work of professional photographers and destroy the photographic industry.”

SIGN IT NOW

Small Businesses already planning to "orphan" Getty Images' pictures

stop43.org.uk@me.com — 2010-03-24T12:20:00+00:00

Posted yesterday on the Federation of Small Business’ email forum:

"I have just been reading elements of the New Digital Economy Bill and especially the aspect of Orphan Works. It appears to read as follows: 'will allow the commercial use of any photograph whose author cannot be identified through a suitably diligent search'. It also appears to want to take licensing and pricing away from copyright holders and place them with a central licensing body.

If this is correct and if you had purchased any image in good faith which did not have identification info contained within it then is it fair to assume that Getty and others could not come after people as they have been demanding thousands.

If so it’s great news for the future and should avoid this current debacle."

Getty Images, a $2 billion global commercial picture and media library, are famous for enforcing their IP rights and suing infringers. An out-of-court settlement with Getty Images for unauthorised use of pictures on their website recently cost a small Scottish transport company £20,000. The images could have been licensed for less than £1,000. Like the general public, small business owners tend not to understand copyright and assume that photos they find on the Internet are “free” and that they “own” photographs that they have commissioned, as if they’d simply bought a spade.

This is the clearest indication yet of how the Public and business in general will view photography if the provisions within Clause 43 become law. It will destroy the market for photography, destroy professional photographers, and seriously damage at least one $2 billion corporation. And this from the Department of Business, Innovation and Skills. What an innovation.

"Public Affairs" lobbying companies "amend the Digital Economy Bill"

stop43.org.uk@me.com — 2010-03-23T22:45:00+00:00

Channel 4 News has broadcast an item exploring the burgeoning world of Parliamentary lobbying companies (“public affairs” companies) and their influence, especially in “weak” areas such as the House of Lords. Starting at around 2 minutes 34 seconds into the broadcast, the item discusses lobbyists’ influence on the Digital Economy Bill:

3.07: Gary Gibbon for Channel 4 News: “Get a Bill where there are enormous commercial interests at stake and you’ll usually find lobbyists getting their way. Some MPs think the Digital Economy Bill, just completing its way through Parliament at the moment, is a very good example.”

3:20: John Grogan MP (Labour): “For about the last six months there’s been lobbying companies crawling all over the House of Lords. They’ve been handing out Amendments to Peers, some of which have now got into the Bill.”

It may be fruitful to explore a conflation of the lobbying row, the excommunication of Hoon, Hewitt and Byers, and the indecent haste in which the Digital Economy Bill, a supposedly non-political Bill that might be expected to survive a change of Government, is being rushed through in a barely-constitutional way, if that. Parts of the Bill remain highly contentious; not only the provisions for terminating Internet connections but also the vague powers to implement Orphan Works and Extended Collective Licensing schemes in secondary legislation and to empower Lord Mandelson (or his successor) to change copyright law at will.

For photographers, these powers (in Clause 43) have the paw-prints of Big Media all over them. Big Media have Big Pockets and can afford Big Lobbying Fees.

The AOP urges its members to contact their MPs without delay

stop43.org.uk@me.com — 2010-03-23T21:30:00+00:00

Today the Association of Photographers issued the following email bulletin to its entire membership:

“The Digital Economy Bill is coming to the end of it's process through the 2 Houses - due to an imminent election there will not be time to debate the Bill fully in the House of Commons. If you don't think it will affect you then take the time to click onto the following links and read about Clause 43 (formerly Clause 42)

http://hub.the-aop.org/

Due to a swell of protest from photographers and their representative bodies the Intellectual Property Office put up a page on it's website explaining what the clause means to photographers - however each point has been countered from a photographer’s point of view:

http://copyrightaction.com/forum/why-the-ipo-is-wrong

PLEASE write to your MP's now - all parties but particularly Lib Dems and Tories - once an election is called the window for debate is very, very small. Template letters don't work, you need to personalise your letter - click here to read pointers as to what to include:

http://hub.the-aop.org/News_archive/p2_articleid/175

You can find your MP and send your letter from here:

http://www.writetothem.com/

Gwen Thomas
Executive Director
Business & Legal Affairs”

The NUJ considers...

stop43.org.uk@me.com — 2010-03-23T19:30:00+00:00

The NUJ's Freelance Industrial Council today voted by a substantial majority to back Stop43.org.uk. This decision however is subject to ratification either by the Union's National Executive Council, or the General Secretary.

“One of the problems that we have had is insufficient protection for intellectual property rights” - Barack Obama

stop43.org.uk@me.com — 2010-03-23T17:45:00+00:00

The White House blog written by Victoria Espinel, the U.S. Intellectual Property Enforcement Coordinator, makes interesting reading:

My job is to help protect the ideas and creativity of the American public. One of the reasons that I care about this is because I believe it is enormously important that the United States remain a global leader in these forms of innovation – and part of how we do that is by appropriately protecting our intellectual property.

We at Stop43.org.uk couldn’t agree more. We wish to protect all intellectual property - both individually and corporately-owned. Overall, the Digital Economy Bill makes great efforts to protect corporately-owned intellectual property. What a pity is does so at the expense of hours, and in such a conclusive fashion.

Ms. Espinel’s blog concerns itself mostly with risks to the public from counterfeit goods. We’re concerned by risks to users of “orphan works” of litigation from their US owners. Amongst other things.

The Lobbying Row

stop43.org.uk@me.com — 2010-03-23T14:45:00+00:00

The Guardian digs into the lobbying row that has resulted in ex-Cabinet ministers Stephen Byers, Geoff Hoon and Patricia Hewitt being suspended from the Parliamentary Labour Party.

"Stephen Byers said he didn't lobby Lord Adonis [the transport secretary]. Lord Adonis said he did. Stephen Byers said he called Peter Mandelson [the business secretary] and got regulations changed. Lord Mandelson said he did not. That's why we need a proper inquiry into all this. We do know that the policies referred to did actually change, so we need to see the minutes of meetings, the emails, the telephone logs, those things, to rapidly establish what did actually happen." - David Cameron

One can only speculate why it might be that the most contentious provisions in the Digital Economy Bill seem to be of such benefit to big business, at the expense of private individuals and the general public.

The British Institute of Professional Photography joins stop43.org.uk

stop43.org.uk@me.com — 2010-03-23T09:30:00+00:00

A warm welcome to BIPP.

The Extended Collective Licensing scam

stop43.org.uk@me.com — 2010-03-23T08:00:00+00:00

Copyright Action dissects the proposals for Extended Collective Licensing in Clause 43, assesses their likely effects on the market, and unearths the big winners from these proposals. As usual, you don’t have to dig far. Unsurprisingly, they are mostly the same big winners from other controversial parts of the Digital Economy Bill.

Photographer Andrew Wiard, who has been deeply involved in the “consultation” process around the Digital Britain report, tells us:

Clause 43 reflects very well the requirements of the publishing lobby. We know this because the Intellectual Property Office have repeatedly told us that the publishing lobby
• opposes moral rights and metadata preservation, because it's "onerous"
• wants mechanisms to legitimise use of the millions of works they have managed to anonymise
• wants Extended Collective Licensing because having to negotiate with individual creators is "cumbersome" (and besides, gives us too much say in the price they'd like to pay).

Hence we aren't likely to get much exposure or support from newspapers and magazines.

The British Press Photographers Association joins stop43.org.uk

stop43.org.uk@me.com — 2010-03-22T13:00:00+00:00

A warm welcome to BPPA.

Digital Economy Bill: what you need to know

stop43.org.uk@me.com — 2010-03-22T09:10:23+00:00

The Guardian has a useful summary of the entire Bill. Of orphan works, the article says: "Orphan works" are copyrighted works whose owner is unknown; this would create a means to license them. The extension of copyright/performers' rights proved controversial in the Lords. Status: Orphan works may survive the wash-up; copyright extension is less clear.

Luminaries object in open letter

stop43.org.uk@me.com — 2010-03-20T12:00:00+00:00

The Guardian reports on an open letter from public figures objecting to the undemocratic way in which controversial measures in the Digital Economy Bill are to be rushed through Parliament before the General Election

UK Music chief Feargal Sharkey slates the Extended Collective Licensing proposals

stop43.org.uk@me.com — 2010-03-19T16:00:00+00:00

• In the Telegraph, Feargal Sharkey is critical of the Digital Economy Bill’s proposals for extended collective licensing, which he says would permit authorised organisations to licence creative works without the creator’s permission.
He said: “The only way that you can respond to that as a creator is by opting out, assuming you knew that process was going on in the first place. We just think it’s incredibly broadly, incredibly badly worded and you cannot begin to believe how open-ended it is.”

We're Off!

stop43.org.uk@me.com — 2010-03-18T23:00:00+00:00

stop43.org.uk gets off to a flying start and bursts its monthly bandwidth limit after being live for less than 8 hours