Stop43.org.uk stop confiscation of your property and Human Rights in the UK Enterprise and Regulatory Reform Bill

The Enterprise and Regulatory Reform Bill could empower Government to CONFISCATE* YOUR PROPERTY, and with it your income, your job, and your future career, in four different ways:

  • 3. ORPHAN WORKS CONFISCATE YOUR COPYRIGHT

    Until now, if someone found one of your photographs and wanted to use it commercially, they couldn't without asking you first. Clause 68 would change all that by allowing anyone to use ‘Orphan Works’ - photographs, illustrations and other copyright works whose owners cannot be contacted for permission to use them.

    Clause 68 says that if someone finds your photograph, wants to use it and decides that they can’t trace you, they'll be able to 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, in which case you should be able to claim some money.

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  • 4. EXTENDED COLLECTIVE LICENSING CONFISCATES YOUR RIGHT TO TRADE YOUR PROPERTY YOURSELF

    Clause 68 also introduces ‘Extended Collective Licensing’.

    This means that if someone wants to use your photograph, even if they can trace you they still wouldn't have to contact you for permission to use it. They could go to a UK Government-appointed ‘collecting society’ (that you might never have heard of) and ask them for a licence instead.

    They’d pay an arbitrary fee and be able to do whatever they like with the photograph. Your photograph. Even something very nasty, like this. Again, without asking you first or paying what you would have charged, whether or not you would have agreed to your photograph being used in the first place. And again, you’d never know unless you happened to find it being used in this way, in which case you should be able to claim some money.

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David Cameron pledged a series of measures to support those who “work hard and want to get on”. Professional creators work hard and want to get on. So why, instead of supporting us, does he intend to confiscate our property, damage our businesses, and undermine our careers?

These measures will make it very difficult for future generations to be professional creators. In effect, the Government is selling our children's futures. A 'green' Government intends to lay waste to the creative environment.

WHAT DO WE WANT INSTEAD? POINTS TO MAKE TO PARLIAMENTARIANS

1. Place on hold all legislative changes to copyright until the Copyright Hub is established and has provided new, innovative licensed solutions to the problems of access that the legislative changes are purported to address. The Cultural Heritage and Academic sectors should continue to make available old unpublished, anonymous and pseudonymous works on a risk-managed basis, as it already does.

2. Wait until the October 2014 deadline before inplementing the EU Orphan Works Directive, and only implement it to the extent that the Copyright Hub has demonstrably and conclusively failed to address access problems.

3. Do not implement any additional exceptions to copyright until then, and again, only to the extent that the Copyright Hub has demonstrably and conclusively failed to address access problems in a licensed way. Any new exception must be accompanied by a balancing protection for rights owners, including unwaivable Moral Rights, Fair Contract Law, and penalties for metadata stripping.

THE ENTERPRISE AND REGULATORY REFORM BILL

1. Clause 66 ought simply to state:

‘The Secretary of State has the power by regulations to vary penalties for infringement of copyright in accordance with the penalties laid down in the Act’, or words to that effect.

The Law Society says:

‘The Law Society considers that copyright exceptions are a sufficiently important issue, with ramifications across many sectors and industries, that changes to them should be subject to the full scrutiny of the primary legislative process. The Society therefore opposes the inclusion of this Clause.’

Anything else is no less than an unwarranted power-grab by the Executive, with all of the Constitutional concerns that implies. As it stands Clause 66 is vague; it doesn’t do what Ministers say they think it does; it doesn’t even do what the IPO says it wants to do with it.

2. Clause 67 is unconstitutional and should be abandoned, as the Delegated Powers and Regulatory Reform Committee has recommended, and old anonymous and pseudonymous works treated as orphan works.

3. Clause 68 (116A) should be abandoned. The Government should only enact into UK law what the EU Orphan Works Directive requires of it, but not before the EU's deadline of October 2014. This will be enough to satisfy the needs of libraries, museums, archives, and the BBC - The Cultural Heritage Sector.

4. Clause 68 (116B) should be abandoned. The EU has specifically rejected it as a solution to the 'orphan works problem': 'This option would neither provide any incentive for collecting societies to become more efficient, nor simplify the multi-territorial licensing of rights (due to opt-outs from collective management which would often lead to repertoire disaggregation).', pages 6-7

THE EU ORPHAN WORKS DIRECTIVE

This should be minimally implemented at the last possible moment and be accompanied by these balancing measures:

1. Moral Rights must be automatic, unwaivable and without exception for visual artists - the entire still images sector agrees about this (see Annex). Lack of automatic moral rights is known to be a major cause of orphaned photographs.

2. There must be real, enforceable penalties for metadata stripping, as recommended by Richard Hooper in his DCE Feasibility Study ‘Copyright Works’.

3. Fair Contract Law must be extended to apply to Intellectual Property, as it does in Germany.