Victory for photographers against orphan works law

The UK Government's Digital Economy Bill passed last night, but with one significant part missing. Clause 43, which would have established a legal means for organisations and individuals to exploit so-called 'orphan works', was dropped. It was a victory for popular democracy, but it's a battle that has been won, not a war.

The triumph belongs to Stop43, spawned out of the Editorial Photographers UK (EPUK) group. A handful of tireless people campaigned using viral images, Twitter, emails and phone calls, mostly targeting MPs. Aside from the viral images - designed, obviously, to be seen everywhere - much of the activity was subtle, focused and - it turns out - highly effective. The emphasis was on raising awareness and opening the eyes of people that mattered, without the grandstanding or self-promoting self-righteousness that characterised other opponents of the bill (notably, filesharing freetards).

The orphan problem

Clause 43 was always a bad piece of legislation. But it will be back. So what's the problem?

An Orphan Work (OW) is a creative work (photo, painting, movie, book, whatever) the copyright ownership of which is difficult to establish. Under current laws, particularly the Copyright, Designs and Patents Act 1988 (CDPA), using a copyrighted work without permission is illegal. It's not just a civil infringement of someone's rights (although most legal cases brought under the CDPA are civil actions), it's also a criminal offence.

Certain organisations have argued that this is strangling our heritage. They say that there are many works of cultural importance that cannot be seen or used because their copyright status is uncertain. On the face of it, it's a powerful argument, especially as it's often espoused by reputable organisations that might not seem to have a financially vested interest - such as national libraries.

This is, indeed, how the lobbyists would like you to view the issue. But it's not the whole truth. In fact, it's such a small portion of the truth that it's practically a lie.

The reality is that it's large organisations with a huge vested interest who will gain from OW legislation. It's indeed ironic that the anti-copyright, 'everything should be free' movement, who always characterise copyright as the tool of the greedy corporates, are actually working on behalf of those same corporates when it comes to orphan works.

It's the huge media companies and the likes of Google who stand to make a fortune out of orphan works. The OW arrangements, as envisioned by Clause 43 and other (so far) failed attempts at legislation, would make it possible for these enterprises to exploit other people's work at no danger to themselves.

Here's a snapshot of how it would work.

A newspaper or TV station decides it wants to use a photograph - probably one it found on the Internet. But they don't know to whom the photograph belongs. Although most common photo formats (like JPEG) allow photographers to embed metadata with their copyright information, this data is often stripped out for one reason or another. For example, many photo-sharing sites (including, for example, Facebook) strip metadata from any uploaded images.

Under current laws, the only safe approach is not to use the image. Or, alternatively, you can get off your arse and do the modest amount of work it takes to track down the owner (there are tools for that now). And there are few images that you absolutely have to use. If you can't use that image, so what? Use another whose author you can trace - and pay.

OW legislation would change all that. You would have to show due diligence in trying to trace the owner. But the amount of effort needed is never properly defined. Then you go ahead and use the image. If the copyright owner pops up later, you simply pay them what you would have paid anyway. In other words, you might as well use any picture you find because you can't be out of pocket and you might get it for free - no damages for wilfully and maliciously infringing someone's moral rights.

Clause 43 added a few wrinkles designed to make it look more reasonable but actually making it worse. Anyone wanting to use an orphan work would pay a fee to a collecting agency. That agency would then pay the fee to any copyright holder who turned up later. The problem is, what fee? The value of a photograph varies enormously. A family snapshot that might have been sold via a microstock agency could be valued quite genuinely at $5. A news photo showing exclusive content, taken by a professional freelance photographer who has to maintain a business, fund trips, make a living and perhaps even put herself in harm's way to get a shot of international importance ... well, where do you start? It would be in the thousands. Possibly many thousands.

There's also the issue of control. As a photographer, I'm rather particular about who uses my images. I would not like some far-right or ultra-religious group, for example, using my images to promote themselves. But when an image is orphaned, it's up for grabs. Anyone can use it for any purpose. See the images on the Stop43 site for examples.

A better kind of orphan

That said, some kind of orphan works legislation is probably inevitable. For one thing, there are too many powerful lobbyists behind it. And there is some merit in the argument that works of cultural importance should be available. So what do we do?

I'd like to see a change in the process by which an orphan work is defined. And I'd like to see fair recompense for copyright owners.

At the moment, the person or organisation who wants to use the work is the one who gets to define whether it's an orphan. "Well, I tried to track down the owner, but it didn't work out" is the gist of how it works.

I would like to see a more formalised process for declaring a work as an orphan. I would like to see specified processes through which people who want to use the work have to work. This might include, for example, making use of search facilities (such as TinEye). They would then have to apply to an organisation to have the work officially declared an orphan. This would include paying a fee. But that wouldn't be the limit of any payment.

If a copyright owner appears, it should be possible for that person to claim a fee based on the genuine value of the work. This might be based on, for example, their normal rates (which could be proved with invoices). And there would be, say, a 50% additional loading, given that the copyright owner actually does exist and the user of the image failed to find them.

Mind you, there is an even simpler approach.

When lobbyists for OW legislation pontificate about copyright's strangehold on the culture, they most often refer to paintings, film and books. And yet it's photography that suffers worst from the orphaning process. It's photographs that are most freely exchanged and stolen on the Internet, and which are most easily separated from their owners. (Music is freely shared too, but most people listening to a song will know who the artist is. When a photograph is stripped of its metadata - automatically or maliciously - the connection with the author is lost.)

So, if orphan works legislation is necessary, simply exclude photography.