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UK Passes Controversial Copyright Act, May Yield a ‘Firestorm’ of Litigation

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A “copyright land-grab” that will “permit the commercial exploitation of [orphan] images” and lead to a “firestorm” of litigation. Those are the terms being used by some to describe a UK bill that just received Royal Assent last week, despite drawing fire from writers and photographers the world over.

The Enterprise and Regulatory Reform Act — which was put forth by the UK’s Intellectual Property Office (IPO) — attempts to address the issue of ‘orphan works,’ but some believe it goes much too far, giving undue power to unscrupulous big companies in both the UK and US.

An orphan work is a copyrighted work whose owner cannot be contacted. In most of the world, acts such as the Copyright Act of 1976 paired with international agreements such as the Berne Convention, make copyright automatic. Thus, any use of orphan work that isn’t termed fair use is as much copyright infringement and subject to litigation as blatant theft; assuming a copyright holder comes forward.

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The new act seeks to protect users of orphan works — allegedly Libraries and Archives that don’t want to face harsh fines for displaying works whose copyright is unknown — by lumping those works into “extended collective licensing” systems and preventing lawsuits against users if an owner comes forward.

This means that any images of yours that are found online with their identifying info missing could be lumped under one of these licensing schemes and used, even commercially, without you being able to demand proper compensation once you discover the infringement. All the infringer has to do is prove they performed a “diligent search.”

Despite what The Register is calling vague wording that will lead to “widespread commercial exploitation of unidentified work,” and a strongly worded letter signed by six groups representing US photographers and graphic artists denouncing the act, it somehow has already become a reality.

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The only way to protect yourself completely from the possible fallout of the Enterprise and Regulatory Reform Act is to register your images or pull them offline entirely. According to photo rights campaigner Paul Ellis, residents of the UK have no choice but to register using the PLUS registry, while US residents can do so by visiting the US Copyright Office website.

The US attempted something similar in 2008 when the Senate’s own amateur photographer Patrick Leahy helped draft the 2008 Orphan Works Bill. But while that bill ultimately died in the US House of Representatives — due, in large part, to the same ‘vague wording’ criticism — the UK bill has sailed through and is well on its way to causing what the writers of the aforementioned letter warn will be “a litigation firestorm.”

(via The Register)


Update: Renowned UK photographer David Bailey has weighed in on this controversy by publishing a letter. He writes,

I am writing because I am appalled at what the government is doing to our rights in the ERRB (Enterprise and Regulatory Reform Bill). Why the ERRB by the way? Why can’t copyright be dealt with properly in a proper Copyright Bill? I’m told everyone will be able to get their hands on our so-called “orphans” so libraries and museums can publish old photographs whose authors have long been forgotten. But never mind what’s lying around on dusty old shelves, what about the millions of “orphans” that are being created now every day!

Why? Because social media, and everyone else for that matter routinely strip our names and contact details from our digital files. They simply should not be allowed to get away with this. They can because our government refuses to give us the right to our names by our pictures (Moral rights). So now commercial organisations will be allowed to make money from our “orphans”, but not us, the creators.

This legislation should never have been even considered without first giving us our moral rights, and is contrary to our rights under the Berne Convention. Why the rush? A scheme, the Copyright Hub – a scheme backed by the government – is being developed to ensure that those who wish to find our pictures can not only do so quickly online, but also find the contact details of the pictures’ owners. You are about to put the cart before the horse.

I’m told the real reason for speed is that “releasing” orphans will create growth. We all understand the need for growth. But where’s the evidence? The seemingly impressive financial figures presented originally in the Hargreaves Review have mysteriously had to be revised – down by 97%! Which now apparently amount to no more than 80p per taxpayer per year. Given the damage this legislation will now cause to taxpaying creators, damage no-one has so far taken into account, the effect of this legislation on economic growth will in fact be negative.

It’s not too late to think again!


Image credit: Parliament by DavidMartynHunt


 
  • russianbox

    Can you sum up what the post is going to talk about / people its relevant too, I tried reading it but then noticed a lot more content even though I didn’t exactly get what I was reading.

    Something like a tl:dl bit would help

  • russianbox

    “The new act seeks to protect users of orphan works, However This could then mean that any images of yours that are found online with their
    identifying info missing could be lumped under one of these licensing
    schemes and used, even commercially, without you being able to demand
    proper compensation once you discover the infringement. All the
    infringer has to do is prove they performed a “diligent search.” “

  • http://www.facebook.com/xsportseeker Renato Murakami

    This basically kills professional freelance photojournalism, if I understand it. Or it at least makes impossible for freelance photographers to post their work on the internet without huge watermarks – seeing as “diligent search” will always be interpreted in favor of whoever has the best lawyers.

  • Norbert

    I wonder what will happen should a photographers image from last years
    Olympic Games be misappropriated by a commercial organisation. I can not
    see the IOC being happy should this happen knowing how protective they
    are of their image, the Games and the deals they have with their commercial sponsors (don’t they even insist that host country governments introduce laws to protect the Olympics from third party exploitation). I
    doubt that the London Olympic Games were in the past will matter to
    them so I suspect we could be seeing some interesting witnesses called.

  • http://www.facebook.com/todd.gardiner Todd Gardiner

    I’m not surprised by the “vague wording”. This is just a bill enabling the writing of statutes that will define the exact details about how the process will work. Essentially this is the first step in enacting legislation, but it doesn’t actually put anything into law as of yet.

    True, it is time to speak up and get some intelligence in the actual statues, but this sort of bill would never really contain that level of detail. UK law making is different than the system in the U.S.

  • http://www.facebook.com/todd.gardiner Todd Gardiner

    Only in the U.K.

  • http://www.facebook.com/todd.gardiner Todd Gardiner

    I would also specify “users in the UK” in your summary.

  • http://www.facebook.com/todd.gardiner Todd Gardiner

    The U.K. is beginning the process to allow the use of orphaned works commercially. In the case of photos, if that photo no longer has EXIF or attribution, they could be used in that country without the photographer’s permission.

    Parliament has pass a bill which starts the process of defining the process and what an “orphan work” is, so now is the time to speak up to get smart language in place.

  • http://www.facebook.com/zosxavius Zos Xavius

    That’s a real problem for the internet where people just copy and paste images all over the place with no attribution. The facebook “like” factories are an increasingly onerous example. A few years ago I never watermarked anything, knowing that people will steal no matter what, so who cares? Then one day I went over an older friend’s house. He had taken a bunch of my facebook pictures, downloaded them and enlarged them to 8x10s. Not only were they all cropped horribly, the image quality was goddamned awful! Those super compressed jpegs just don’t hold up well under enlargement and the were only 1600px wide anyways. He told me how he was showing off my work to other people. This pissed me off to no end. I started watermarking from that day on. He never printed anymore of my pictures. The worst was when he gave one away to a local business without my permission. The other bad thing was that a local print shop was printing them for him. I thought about paying them a visit….

  • http://www.facebook.com/people/Lars-Blackmore/100002336794056 Lars Blackmore

    Well, that gets kinda interesting, doesn’t it: the internet doesn’t respect national boundaries much — and if the orphan isn’t flagged w/ an owner, it also won’t be flagged w/ a “nation of origin.” So, when that British advertising agency comes across your (non-UK) image online and makes off with it, what will you be able do about it? They’re in compliance w/ UK law, after all, and good luck trying to sue them for violating your US copyright from the US or anywhere else outside of the UK.

  • http://twitter.com/TheresaZphotoz Theresa Z.

    That is horrible for your friend to do without asking you. I have received criticism though the years about my watermark, I kept using it. After reading this article I am even happier that I did. I wish that PS would make metadata permanent.

  • http://twitter.com/TheresaZphotoz Theresa Z.

    Exactly. This is worldwide

  • http://www.bobcooleyphoto.com/ bob cooley

    Like a lot of bad laws, this will likely be overturned after heaps of ligation hit the courtrooms.

    It’s sometimes said that copyright is broken – I don’t know if I agree with that; it seems to work very well (when enforced) to protect creators of original works. The only time I ever hear about someone saying that copyright is broken is when it’s someone who has gotten in trouble for, or wants to use someone else’s creative work for free.

    I’d love to hear relevant arguments to challenge this (and ‘copyright hasn’t kept up with the age of the internet’ isn’t really a valid argument – the net is just another publishing tool). I think Creative Commons, when done well, is a good solution for some, mostly because it still allows control of the copyright by the creator and allows them to create blanket licensing under certain circumstances – but wholesale copyright grabs are a horrible thing for the industry and creative innovation.

  • http://twitter.com/mjlonsda Matt L

    In Canada, you’ve been able to apply to the Copyright Board for a license to use an orphaned work since 1997. You just have to have made “reasonable efforts” to locate the copyright owner.

    It’s the exact same idea, and it hasn’t yet destroyed copyright across the globe.

  • Matthew Wagg

    Well until this gets sorted all my works are coming offline.

  • Matthew Wagg

    A very similar bill recently got thrown out of congress. It might only be the UK now but believe me it affects everyone around the world.

  • http://www.facebook.com/people/Jim-Kramer/100000488187342 Jim Kramer

    I’m sorry, this is not accurate. A simple service like DigiMarc will electronically stamp your copyright into the very bytes of the image. It is invisible, but follows the image forever, even copies. A simple query with the correct tool will connect the image to a registered user at DigiMarc. Yes, it does cost money to belong to DigiMarc, but it’s well worth it. In fact, their crawlers routinely scour the web for images with DigiMarc info embedded in them, and report those found to their respective owners.

  • phil

    This is typical of UK law, vague wording and ultimately will have the opposite effect. Remember the cap on university fees? Maximum £9k so everyone put up their prices to £9k

  • http://www.facebook.com/zosxavius Zos Xavius

    He didn’t do it with ill intentions. Some people do things without thinking about what it really means. I said some things and made him feel pretty bad, which made me feel kind of bad about it too because he was just a big fan at heart.

  • http://twitter.com/adamgasson Adam Gasson

    Their crawlers can’t search anything offline though, so it’s very limited option. In reality licencing images for print and advertising use is where photographers make money – not hosting images online. That’s where the real danger lies, not people on Tumblr blogging your images without permission (which happens now anyway).