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New UK Policy Raises Concern Over Copyright Amongst Photographers

The UK government issued an updated copyright policy statement today that’s intended to modernize copyright law in a digital era. But here’s where those traditionally protected under copyright — authors, poets, artists, photographers and so forth — begin to cringe: sweeping definitions of “orphan works” and Extended Collective Licensing could allow companies to buy chunks of content without compensating original authors.

The document states:

Copyright brings undoubted benefits to its owners, but has consequences for others. Restrictions on copying that are intended to protect creators and encourage investment can end up merely preventing the use of works. The Government is concerned both to provide appropriate incentives to creators and creative industries and to ease unnecessary restrictions on users of copyright works. In some circumstances there may be benefits to the UK from allowing greater access to a stock of works for creators to draw on, from reduced transaction costs and from more opportunities to knowledge, data, and cultural works.

A number of such examples were highlighted within the Hargreaves Review of Intellectual Property and Growth 2 (May 2011), to which the Government responded in August 2011 with a number of proposals. The Government response indicated a desire to facilitate the legitimate use of copyright works without undue adverse impact on creators and rights owners, and to improve the flexibility of the system to deal fairly with digital technology and the potential for copying and new uses of works that it brings.

One such way the government will add “legitimate use of copyright works” is by changing the process of copyrighting.

The Register’s Andrew Orlowski writes in an analysis of the policy that potentially, content creators could lose their digital rights unless they opt out of the new Extended Collective Licensing (ECL) program:

It would operate roughly like this. A new agency, let’s call it ‘Bastard Ltd’ could apply to become a licensing authority for a given class of work, for example, cartoons or poems. It could then license any work in that class without the rightsholder’s permission, for any fee it cares to set, so long as it was “significantly representative of rights holders affected by the scheme”. Amazingly, Bastard Ltd would have no obligation to return revenue gained to the rightsholder, if it couldn’t find them. The obligation would fall upon the rightsholder to keep the agency updated at all times – the reverse of the law today. The Government calls the proposals ‘voluntary’, but it’s actually anything but: if you don’t like it, you too will have to opt out.

Content creators will have to register their work through the Digital Copyright Exchange in order to opt out.

In the Authors Rights blog analysis, there’s a more slippery slope when it comes to “orphan works” — unclaimed or untraceable works.

Hargreaves calls for legislation to enable ECL for ‘mass licensing of orphan works’ and establish a procedure for clearing rights in individual works. In the Executive Summary he says that ‘a work should only be treated as an orphan if it cannot be found by search of the databases involved in the proposed Digital Copyright Exchange’. [p. 8] This implies that the sole or main determinant of orphan status would be the failure to register a work with the Digital Copyright Exchange. In a couple of other places, however, he talks as though checking with the projected Exchange would only be one of the requirements (though an important one) in a more extensive ‘diligent search’ process that would necessary before a work could be treated as an orphan. [4.34, 4.56].

… Under Hargreaves’ proposals, anything not specifically opted out of the ECL scheme is to be treated as an orphan for the purposes of mass licensing, regardless of whether its owner is traceable.

You can read the law and statements here.

(via The Register)


Image credit: Grabbing Hand by brtsergio