Stop43 co-founder Paul Ellis writes:
Early in the morning on Thursday 7th March I took a call from a lawyer friend who said: “It looks to me as if you’ve just been slandered under Parliamentary privilege.” He was referring to a speech made the previous evening by Lord Howarth (1), (2) during the Report debate about the copyright clauses in the Enterprise and Regulatory Reform Bill.
I read the speech, and it appeared to me that Lord Howarth was deploying a familiar tactic when an inconvenient truth is revealed: the combined faux straw man/ad hominem ploy of plainly stating the truth you wish to hide, and then discrediting the truth-teller in order to discredit that truth by association.
In his speech, among other things Lord Howarth appears to me to contend what I think is a statement of fact, namely that secondary legislation is not subject to the full scrutiny of Parliament. He also appears to me to imply that he disapproves of ordinary, unfunded private citizens campaigning or lobbying at their own expense to protect their interests and rights. After reflecting for a while I decided to write to him, and my letter follows below.
I have also written to Lord Stevenson, the Labour lead on the ERRB in the Lords, asking him for his answers to the following questions:
- Do you or your Party hold the view that Statutory Instruments constitute legislation which has been subject to the full scrutiny of Parliament? and:
- Do you or your Party hold the view that private individuals should not campaign or lobby the government in their interests and for their rights?
Other photographers have written to Lord Stevenson asking him the same questions. Some have received replies. I have yet to receive a reply from him, or from Lord Howarth.
* Updated 17 March 2013: It seems Lord Howarth did not receive my email. Via his daughter, photographer Sophie Howarth, I have made contact with him and we have arranged to meet to discuss this further.
I have still yet to hear from Lord Stevenson.
Dear Lord Howarth
I was astonished to see yesterday that you have immortalised me in Hansard. I would be most grateful to you if you would allow me to comment on your remarks.
“I also hope that the report will inform us as to how the Intellectual Property Office seeks to gather views and reconcile different interests and points of view. I have very much sympathy with it in the very difficult and sensitive task that it has to carry out.” I agree with you. You then went on to say:
'"The world's largest news agencies have delivered a Letter Before Claim to the UK's business secretary Vince Cable in what is described as the first step in the process of initiating a Judicial Review - a formal legal challenge to governmental planned legislation".
The article [in the British Journal of Photography] goes on to suggest that the Government are proceeding quite improperly. It challenges the Government's plans to introduce their proposed changes through what they were pleased to call "Henry VIII clauses" - secondary legislation which is not subject to the full scrutiny of Parliament.’”
The view that the Clauses are Henry VIII clauses is held not only by the Tier One intellectual property lawyer who drafted this briefing paper on the Bill (and its more than seventy signatories), but also by other legal experts to whom I have spoken. I, a layman, defer to their expert judgement.
You go on:
“That is not very complimentary to your Lordships. We are engaged in quite serious and intensive scrutiny of this legislation. We certainly will be when we have the regulations in due course.”
It is my understanding that the regulations will be enacted as statutory instruments; that SI's are not scrutinised and debated by the full House; that they cannot be amended but must either be accepted or rejected as they are; and that the last time an SI was rejected was in 1979, concerning the price of paraffin. So I consider the statement 'secondary legislation which is not subject to the full scrutiny of Parliament' to be true, but am perfectly happy for my view to be demonstrated to be false.
You then say:
“What was completely bizarre was then to read a quotation in the name of Mr Paul Ellis of the Stop43 organisation:
"The technology, academic and cultural heritage sectors want to be able to use other people's copyright property without having to ask or pay for it, and view copyright law as an obstacle.’”
This is a pure statement of truth. They do consider copyright law to be an obstacle - there is a profusion of evidence to support this view - and the legalised 'use of other people's copyright property without having to ask or pay for it' is the precise purpose of these Clauses.
You continue: ‘”Under their intense propaganda and lobbying onslaught several governments have fallen for this line and are trying to introduce laws that weaken copyright, such as the Enterprise and Regulatory Reform Bill now going through Parliament’.”
Again, there is abundant evidence in support of this statement. Last year the French government very seriously weakened authors' rights; the Chinese government is considering far-ranging 'orphan works' and ECL measures; the US government is once again considering 'orphan works' legislation which will be harmful to authors' rights and markets based upon them; and of course most evidently the EU has introduced an Orphan Works Directive. All weaken copyright. I could go on, at length.
“He then goes on to denounce, "these lobbying-driven legislative attempts to confiscate our property”.”
I most certainly do. Here is a report of an example. Again, I could go on, at length.
You conclude: “It seems a bit of a case of the pot calling the kettle black. The serious point is that the IPO is very vigorously lobbied from a multiplicity of sources and by a multiplicity of powerful commercial interests…”
The IPO most certainly is 'very vigorously lobbied from a multiplicity of sources and by a multiplicity of powerful commercial interests', but it may surprise you to learn that I am not one of them. I am not a lobbyist, but a low income unfunded private individual campaigning in his spare time to try to retain his property and human rights. I have no more than a laptop and an Internet connection. In contrast the British Library and the BFI both have staff whose functions amount to that of full-time lobbyists, and if you read the article at the link above you will see the multiplicity of guises in which Google lobbies for the weakening of copyright. If you would like to understand why they do, I can recommend the documentary 'Google and the World Brain', recently broadcast by the BBC, which provides a very good introduction to the background of all of this.
I was astonished to be conflated with 'powerful commercial interests' and their well-funded lobbyists, and would be grateful for an explanation of the equivalence of professional lobbying and unfunded campaigning, because to me your statement implies that private individuals should not lobby at all. Is this really your view?
And if the IPO (an entire Government department) cannot withstand me and my efforts, and quails under the onslaught of an unfunded citizen carrying out his Athenian duty, then I wonder what it is made of. Perhaps it has lived rather too cosy and sheltered a life.
I would be most grateful for the opportunity to discuss this further with you before the next debate, if you can spare the time for this. Thank you, Lord Howarth.
International Media & Archive Consortium warns of Judicial Review over UK Government plans to weaken copyright
A consortium of the world’s largest news agencies, commercial licensing companies and commercial audiovisual archives has today called on the UK Government to rethink its plans to weaken UK copyright law and its use of secondary legislation. The Government’s proposals are being implemented through the Enterprise & Regulatory Reform Bill, currently being debated in the House of Lords.
Controversially, the Government proposes to make wholesale changes to UK copyright law via secondary legislation and without the benefit of Parliamentary scrutiny, which includes time for public review and comment. The consortium has delivered a Letter Before Claim to Business Secretary, Vince Cable, which is the first step in the process of initiating a Judicial Review - a formal legal challenge to the Government’s planned legislation and the manner in which it proposes to introduce it.
The consortium includes The Associated Press, Getty Images, Reuters, British Pathé, The Press Association, and the Federation of Commercial and Audiovisual Libraries, who operate advanced digital licensing businesses of content on all formats. The consortium believes that the economic growth arguments originally put forward to justify the Government’s proposals are without basis and has challenged the Government’s plans to introduce its proposed changes through so-called ‘Henry VIII clauses’ - secondary legislation which is not subject to the full scrutiny of Parliament, which includes visibility to the public.
A coalition of more than 70 creative industries organisations has described the proposals as premature, ill-thought-out and constitutionally improper.
This action follows on the heels of:
- the comprehensive demolition of the economic case for the proposed measures;
- unprecedented creative industries opposition to the proposed measures;
- warnings from foreign rights owners that the proposed measures will infringe their rights and breach the UK’s international obligations;
- the chaos of three different Ministers in charge of the Intellectual Property Office within four months;
- an All-Party Parliamentary report which found the Intellectual Property Office lacks effective political oversight and control;
- an inquiry into support for the the creative economy and the impact on the creative industries of the Hargreaves Review of Intellectual Property and Growth, and the Government’s Response to it;
- the widely reported remarks made by Steve Hilton, former special advisor to the Prime Minister, that 'British bureaucracy masters the politicians’;
- and of course the similar, failed attempt by Instagram to grab its contributors’ property, which has cost it half of its users.
Download the full Press Release
In an unprecedented display of industry solidarity, over 70 organisations representing photographers, authors and other creators and rights owners have signed a briefing paper objecting to UK Government plans fundamentally to change copyright legislation and confiscate their property, rights and potential income.
The document, drafted by Serena Tierney, Head of Intellectual Property at Bircham Dyson Bell, is the product of a joint effort in which Stop43 participated. It has been sent to Peers participating in the Grand Committee Stage of the Enterprise and Regulatory Reform Bill, during which these proposed measures will be debated, and was released to the public on Friday 11 January 2013. Ms. Tierney’s covering letter reads:
11 January 2013
Enterprise & Regulatory Reform Bill (ERRB): briefing for Grand Committee session Wednesday 16th January 2013
On behalf of an exceptionally wide range of copyright-dependent businesses, I attach a copy of a briefing note that we have prepared to inform peers for the debate in Grand Committee on Part 6 and Schedule 21 of the ERRB.
The note has been signed by 73 organisations and individuals. These range from major news-gatherers including ITN, Reuters and the Press Association to individual photographers and illustrators. They include some of our most historically-significant audiovisual and picture archives such as British Pathé, the Tate, Mary Evans Picture Library and the Scott Polar Institute. Organisations representing illustrators, journalists, photographers, authors and cartoonists have signed it. So have bodies representing foreign copyright-owners whose works are used in the UK. This Bill is causing consternation amongst creators from the US to New Zealand.
In my experience, it is unprecedented for businesses of such differing scales and across many creative disciplines to speak with one voice in this way.
The explanation is that the ERRB provisions on orphan works and extended collective licensing will take away rights from creators upon which they depend to make a living. These provisions are premature, ill-thought-out and (as has been recognised by the Delegated Powers Standing Committee), constitutionally improper.
If you have the appetite to see the impact on one set of individual creators, photographers, I recommend this Guardian article and the comments below it.
The government reiterates its intention to promote growth in the UK economy through its support for the creative industries. When this range of creative industries are so concerned by the damage to them if the current ERRB passes into legislation that intention must be seriously under threat.
The attached note was prepared on the basis of the text of the ERRB as at Second Reading. The government has this morning proposed some amendments following the recommendation of the Delegated Powers Standing Committee that clause 67 be withdrawn. The withdrawal of the proposal to provide the power to remove copyright protection from anonymous and pseudonymous works is welcomed as is the recognition that pre-1989 unpublished works should continue to be protected in accordance with the EU Directive.
Once it knows what is happening, the general public takes a dim view of attempts to confiscate its property and rights. Recently Instagram decided to grant itself the right to sell images uploaded to its site. The resultant public outcry was huge, and despite rapidly backing down, as a consequence of its greedy and ill-judged move Instagram has lost nearly half of its subscribers.
In 2010 Clause 43 of the Digital Economy Bill attempted a similar property grab. It was defeated by concerted public opposition led by photographers.
Parliamentarians: these measures are a vote-loser.
‘This clause enables the exceptions to copyright set out in Chapter 3 of Part 1 to the CDPA 1988: and the exceptions to rights in performances set out in section 189 of, and Schedule 2 to, of the CDPA 1988 to be amended by secondary legislation.’
And there we were, waiting for the Copyright Consultation to wend its way to a close, and for it to Report, and for the Report’s conclusions to be incorporated into a White Paper, followed by draft legislation in a Communications Bill some time next year. Instead, the IPO has sneaked an extremely broad blunt-instrument clause into a general-purpose Bill which, if enacted unaltered, will enable many of Hargreaves’ recommendations to be implemented by civil servants without further Parliamentary oversight of the legislative process – MPs will only have the power to say no. Or, so it seems.
The IPO claims that the purpose of Clause 56 is extremely narrow and specific: ‘to enable the Government to preserve the level of penalties which are set out in the substantive copyright legislation’, the problem being ‘currently, when section 2(2) of the European Communities Act 1972 is used to amend the exceptions to copyright and performance rights, this can cause difficulties as its use may require a downwards adjustment of criminal penalties in copyright legislation.’
In other words, if existing copyright exceptions are narrowed, extending the number of people caught by a criminal offence, and if the Government stuck with using the European Communities Act because it wants to do it by SI, the new penalties would be limited to a maximum of two years when existing penalties may be higher. It would appear that by introducing a clause which allows them to do what they say they want to, namely adjust criminal penalties, Government would be able to maintain the criminal penalties at the higher level which, for creators, would be a good thing.
Perhaps unsurprisingly, no-one else has interpreted the text of Clause 56, and therefore its primary purpose, in this narrow and specific way. The highly experienced and perceptive Tony Ballard of IP specialists Harbottle & Lewis certainly didn’t, and neither did ALCS. In a Parliamentary briefing paper released on Monday 11th June, the Law Society says:
’12. Clause 56: Power to change exceptions: copyright and rights in performances –Chapter 3 of Part 1 of the CDPA deals with ‘permitted acts’, that is, those acts which can be performed without the consent of the copyright owner. For example, criticism, review and news reporting or anthologies for educational use. Clause 56 creates a power for the Secretary of State to add or remove from this list of copyright exceptions by means of secondary legislation.
13. 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.’
ORG, needless to say, is cheering it on. Why does Clause 56 concern itself with copyright exceptions, and not penalties for infringement?
Stop43 would be grateful if Parliamentarians would ask the following questions during the Bill’s progress through Parliament:
- There is no foreseeable need to change copyright exceptions to comply with EU law - all directives have been implemented, and no new EU copyright exceptions are proposed - so why is Clause 56 needed at all?
- If the purpose of Clause 56 is to maintain criminal sanction levels if copyright exceptions are amended, why does the text of the clause not specifically refer to that, and limit itself to that purpose and no other?
- Why is an overarching Ministerial power to change copyright exceptions needed, rather than simply a power to adjust criminal penalties, given that the latter is the stated aim of the clause?
- Are we to believe that the IPO wishes to see enacted a law of very broad scope merely so that they can tinker with penalties for criminal breach of copyright, or do they have some other purpose or goal in mind? Let’s not forget that in legislative terms, ‘the Secretary of State’ does not actually mean ‘the elected Minister’. Rather, it means ‘officials from the Minister’s department’: in this case the IPO, and its unelected mandarins John Alty and Edmund Quilty. Yet again, the freetard-friendly IPO is marking its own homework.
- Why, given the high-profile Hargreaves Review, the ongoing Copyright Consultation which was expected to result in a copyright reform Section of the Communications Bill, and the near-universal collapse of trust in the IPO by creators, reflected in the current All Party Intellectual Property Group investigation into its role and function and Government policy and attitudes to IP in general, does the Government now seek without fanfare to empower ‘the Secretary of State’ (a.k.a. Ed Quilty) to make fundamental changes to UK copyright law in a way that bypasses Parliamentary debate?
- At what point did the UK Government cede such power and sovereignty to Brussels that the default legislative position became that of assuming that any and all provisions within EU law can and should be enacted in the UK by secondary legislation, bypassing Parliamentary scrutiny and debate, and leaving MPs with the power only to accept or reject entire legislative texts at face value, with no amendment?
- We’re told that copyright law must be changed so as to afford ‘legal certainty’ to those wishing to use intellectual property belonging to others, usually without the prior permission of or payment to its owners. What about the legal certainty of those whose businesses are built upon intellectual property ownership, and who could find ownership and control of their property removed from them without warning?
We hear a lot about the so-called ‘chilling effects’ on free speech, innovation, entrepreneurialism, growth, and so on, resulting from intellectual property owners trying to enforce their rights. In fact, if you do try to enforce your rights and stop your property being used without permission or payment you’re likely to be outed on chillingeffects.org, the Internet’s very own Big Bully.
Let’s look at some real chilling effects. The IPO’s Copyright Consultation document states the following, at 7.137:
'Restricting or removing this ability to license could therefore deliver significant financial benefits to educational establishments and free up their use of copyright works. However, there is a danger that going too far will undermine the financial incentives that encourage the creation of new educational works.’
Too right. Who is going to risk creating works aimed at the educational sector, or usable by education, if there is a risk that a capricious Government could, without warning or consultation, kill their market stone dead?
‘Speaking as a photographer, who supplies the education market via books and suchlike on a regular basis, I find all this a tad worrying. Not only am I finding my market being eroded from the point of view of payment per use, but if educational use exceptions become extended I will lose much of my income. Already I suspect my income from DACS payback will be hit by this, but also my mainstream work. Where exactly does it end. Rarely if ever do I see educational exceptions properly explained and defined.’ - Pete Jenkins, Stop43 activist
THE BIG CHILL
All of the following are happening right now:
- creators weighing up the risks and options and deciding no longer to create, or to keep their creations to themselves;
- photographers taking their image galleries off the open Internet and password-protecting them; using https URLs that Google cannot index; or using https cloud galleries such as Dropbox to make their work available only to known, invited visitors;
- a move away from the Internet and digital sales & distribution, back to more traditional forms of business.
The author of this article has done all three. Now, when I create, I keep my creations to myself. I don't use Flickr, or Facebook, or any other social media. My Linkedin page functions solely as my online CV for this voluntary campaigning work. I've been urged by many of my clients to write a book. I won’t: given current levels of piracy, the costs of copyright enforcement, and the laughable penalties available, I can't see how I would make sufficient money from it to justify the cost of the time spent and income lost in writing it.
There’s your real chilling effect, bureaucrats and Ministers: the high-level professional work that will no longer be created or made available to the public, thanks to your unstinting efforts to deprive its authors of the means of recompense.
Is this really what you want, dear Government, Professor Hargreaves, and Google, in the Information Society era? We think it is.
POSIWID. The Purpose Of a System Is What It Does.
* Updated 2012-16-11 to include quotation from the Law Society briefing paper
A highlight of the ceremony is the announcement of the L’Iris d’Or, the Sony World Photography Awards Photographer of the Year.
The evening will include a speech by Minister for Culture, Communications and Creative Industries, Ed Vaizey, in support of the photography industry. The speech follows in the wake of last year's Hargreaves Review of Intellectual Property, this year's Consultation on Copyright, and comes before new copyright legislation expected next year that will directly affect photography.
At the IPO’s Orphan Works/Extended Collective Licensing event, the IPO announced to attendees that the system under consideration is modelled on that in operation in Canada. Canada has only issued 260 orphan works licences in its scheme’s 22 years of operation. Only one of these was for an audiovisual work. It has denied the issue of eight licences in that time.
There’s not much scope for ‘Hargreaves growth’ or mass digitisation there, then. The real solution, of course, is a properly constituted Digital Copyright Exchange which also authorises Cultural Use.
EXTENDED COLLECTIVE LICENSING
Touted elsewhere as some kind of universal panacea for all copyright problems, at the same event the IPO stated that only existing collective licensing schemes would be ‘extended’. There is only one collective licensing scheme for photographs that we know of: DACS’ Payback scheme for photocopying. So, under ECL you’d be able to photocopy works of unknown authors, too. And that’s all.
There’s not much scope for ‘Hargreaves growth’ or mass digitisation of photographs there either, then.
As a concept, ECL rather glaringly ignores an obvious primary property of digital networks: their ability to facilitate and log individual transactions. The Internet makes it easier, quicker and less costly to license individually in a primary way; it shrinks the scope for collective secondary licensing. ECL is anti-innovation, anti-digital, anti-competitive, and discriminates against copyright owners:
- Anti-innovation because it precludes the development of innovative new digital market primary licensing solutions for the uses covered by ECL;
- Anti-digital because it removes the possibility of digital transaction developments from satisfying the requirements covered by ECL, including no-fee transactions;
- Anti-competitive and discriminatory against rights owners because it abolishes contestable markets in primary licensing for the uses covered by ECL.
Probably because of the above, attention and lobbying effort seems to have shifted somewhat towards wholesale exceptions to copyright for private copying, educational use, use by libraries and archives, and so on.
Hargreaves said that the UK doesn’t make full use of all of the exceptions permitted by the EU, and that it should. He neglected to point out that the UK doesn’t provide all of the protections to authors available in other EU countries either, or that perhaps it should. In this regard, as far as authors, creators and rights owners are concerned, Hargreaves is all take and no give.
Like ECL, copyright exceptions are anti-innovation, anti-digital, anti-competitive, and discriminate against copyright owners:
- Anti-innovation because they preclude the development of innovative new digital market primary licensing solutions for the uses covered by the exception. In a capitalist system there will be little innovation in any area where there is no money to be made;
- Anti-digital because they remove the possibility of digital transaction developments from satisfying the requirements covered by the exception, including no-fee transactions;
- Anti-competitive and discriminatory against rights owners because they abolish contestable markets in primary licensing for the uses covered by the exception;
- Given that they weaken rights owners’ human rights and that alternative ways can be found of satisfying the requirements these exceptions are intended to address, under Judicial Review they are also likely to fail the 3-stage test of Proportionality.
At the IPO events, those lobbying for these exceptions did so on the grounds that ‘they would only bring the law into line with what everyone already does anyway’; that ‘libraries and archives require these exceptions in order to carry out their Public Service duties’; that ’copyright law must catch up with modern educational practice’; and that these exceptions must not be over-rideable by contract.
They were notably mute on the question of whether authors’ rights themselves should be over-rideable by contract, which they are, and which is in fact a huge problem for authors. They also said little about better moral rights for authors, which would in practice make their scholarly, curatorial and archiving work easier and cheaper. Stop43 wonder why not? Let’s look at each of these excuses in turn.
- ‘Everyone already copies anyway’.
The IPO Consultation Document repeatedly makes the assertion, which pollutes this whole discourse, that consumers 'own' content. This is a false premise: how can we have a rational discussion on this basis? Consumers own licences to use 'content' in certain specified and limited ways; their misapprehension of this fact appears largely to be the cause of their uncertainty about copyright, and by perpetuating this misapprehension the wording of these questions does absolutely nothing to change that.
In current law, rights owners are entirely free to issue licences which permit rights users to copy or format-shift the work, or use it on multiple devices. iTunes, Amazon and Ultraviolet permit exactly that, as do some photographers. On the other hand, social and fine art photographers’ businesses and reputations for high quality ‘deliverables’ could be destroyed by an over-broad private copying exception. It’s notable that the IPO’s Economic Impact assessment documents big up the imagined gains to the economy from exceptions whilst largely ignoring the concomitant losses to rights owners.
At the Private Copying Exceptions event, the excellent point was made that this exception is supposed to stimulate growth, but as we've never had such an exception in the UK there is no data to support the assertion. However, other EU countries have such an exception: has it stimulated growth there? The IPO didn't know and were hoping we might tell them. This extraordinarily lame answer really blows the gaffe on the whole Hargreaves 'empirical evidence' posture. Perhaps the imagined economic benefit really is imaginary?
Another interesting question is that of the copyright status of a digital copy of a work on traditional media. The Cultural Heritage Sector is fond of asserting copyright over these digital facsimiles, claiming that the ‘skill, judgement and/or labour’ involved in the digitisation process justifies it. A private individual or commercial operator is capable of just as much ‘skill, judgement and/or labour’ when digitising a traditional work as the British Library; perhaps more so. Is such a person therefore entitled to claim copyright in their copy? If not, why not? And if they are, what is to be done about the proliferation of competing claims to copyright in multiple, indistinguishable, independent copies of the same traditional work? This is an absurdity, and not theoretical: the Bodleian Library allows anyone to digitise its out of copyright works.
The New York District Court found there can be no new copyright in a ‘slavish copy’. A high-quality reproduction of a piece of flat art is produced, using skill, judgement and/or labour, in order to remove as far as is practicable any distortion in the resultant facsimile image, because if you leave it in you get a poor copy. Ergo, a good copy is characterised by its lack of distortion: i.e. its lack of any new creative content. Its entire purpose and function is to be a 'slavish copy’.
The Court of Justice of the European Union says that a copyright work must be an expression of ‘the author's own intellectual creation’. Anything made with the intention of it being a 'slavish copy' of something else can never be that. A work of high technique and craft, yes. A new copyright work? No. A new copyright work must incorporate new intellectual creation.
Stop43 is in favour of digitisation of works for preservation and Cultural Use, on the proviso that it is recognised explicitly in law that no new copyright arises in the resultant digital facsimiles.
- ‘Libraries and archives require these exceptions in order to carry out their Public Service duties.’
It has become apparent that their real beef is with having to pay for anything, whether it be the costs of diligent search for orphaned rights owners, the costs of market-rate Licences to Use, or even the costs of collective licences. Using the sanctimonious argument of having a fiduciary duty to the public purse, they insist on access to the property of others for nothing. They forget that the proper use of public funds is for the acquisition, at fair market rates, from members of that very public, of the goods and services that the public, via its Government, deems it requires. That is why the public, via its Government, makes its funds available to them.
Everyone else involved in libraries and archives, from chief executives, managers, librarians, archivists and IT suppliers down to caterers, builders, architects and utility companies, gets paid at market rates for their goods and services. Apart from the requirements of legal deposit, why must rights owners provide the use of their property for nothing?
- ‘Copyright law must catch up with modern educational practice.’
Plenty of creators and publishers run businesses built entirely upon creating and licensing works such as textbooks specifically for the education sector, and a variety of licensing bodies exist to provide collective licences for educational establishments to do things such as record broadcasts. In 2009, Higher Education made £60bn for the UK economy: more than the pharmaceutical or agricultural sectors. Do farmers demand the free use of other people’s property?
The true consequence of the change to ‘modern educational practice’:
In the days of blackboards and chalk, schools existed within a ‘walled garden’ in which virtually all of the copyright materials they used had been bought (the books), licensed (the films shown), or were covered by the Private Study Fair Dealing exception. Teachers wrote or drew on the blackboards; pupils copied out into their exercise books. Remember them?
Tape recorders, VHS recorders, CD players, DVD players and whiteboards paved the way to unlicensed use of copyright material. Once those whiteboards and school computer labs were connected to the Internet, all hell broke loose. The walled garden of the old school was replaced by a Google-searched free-for-all which broke the previous ties of licensing and payment between rights owners and school-based users.
Now, “everything on the Internet is free, isn't it?" as the headmistress of my daughter's primary school said to me, when I was discussing with her the school's Facebook-like 'MLE' (Managed Learning Environment) in which all the kids have home pages and compete with each other for the most hits on their page by stuffing them with cute images and clips lifted from Google Images.
Many schools and colleges have similar so-called ‘secure college study spaces’, also known as ‘virtual learning environments’ (VLE’s). Although they take a very dim view of cut-and-paste plagiarism of text from the web and have automated tools to detect it, clip art, graphics and images pulled from Google are widely regarded as fair game by most staff and students.
Colleges are businesses nowadays, and are motivated by business principles. Reducing overheads is a constant theme, so copying images from the web is a no-brainer. Teaching staff have little idea or resources for buying licences, but are now publishers within these and other learning platforms.
The result is that schools and colleges have lost any kind of real control over the copyright material within their ‘VLEs’. Rather than reasserting control, they demand copyright exceptions to make their problem evaporate, and of course an exception would enable compulsory use in which rights owners’ property rights no longer apply, and for which they won’t always receive payment.
As Robert Levine says: 'Yeah, if it's a school where the janitor doesn't get paid, where the teachers don't get paid, and where the school pays no rent – fine, you can use my book. But if they're getting paid, I as an author, want to be paid too.'
It’s become clear that the entire Creative Industries are now strongly united in their opposition to further copyright exceptions. Once again the real solution and way forward for education, of course, is a properly constituted DCE which also authorises Cultural Use, searchable by use allowed (or pre-paid), whose image search software can penetrate the ‘VLE’ firewalls to audit their content, tracking and logging transactions. Teachers and lecturers use Google Images because they can, and because they don't know any better. With access to a DCE walled garden 'Google Images' of pre-cleared material, or authorised a licensing budget per project up to a certain amount so that schools, colleges or individual teachers can acquire primary licenses, a real, equitable solution becomes available.
A DCE finally installs checkouts in the free-for-all Internet supermarket.
OVER-RIDE BY CONTRACT
Only three of the events Stop43 attended reached any kind of consensus: the Collecting Societies Code of Conduct event at which we were essentially observers; the Statutory Copyright Notices event which concluded by a 2:1 majority that the IPO should not offer such Statutory Notices; and the Contract Over-Ride event which tentatively agreed that as a general rule exceptions should be be over-rideable by contract but the case should be examined for each exception individually, and that even now certain CDPA1988 exceptions have in their wording that they cannot be over-ridden.
Some very important and problematic consequences of exempting exceptions from contract over-ride were pointed out in this meeting, not least by the collecting societies. And again, we note, Hargreaves only mentions exceptions being exempt; he says nothing of the rights themselves, which creators are routinely parted from by way of onerous take-it-or-leave-it rights-grabbing contracts imposed by oligopsonistic market bullies.
The lobbyists’ argument eventually boiled down to their being subject to badly written contracts (they are mass users: have they no negotiating power or skill?) and that the variation across contract terms and conditions precludes simple, one-size-fits-all usage of their licensed assets by staff and students.
At a ministerial roundtable attended by Stop43 the IPO asserted that the no-contract-over-ride provisions are primarily aimed at libraries and their problems with access to online journals, and the plethora of contracts they must read and agree to, many of which are with foreign companies. They compared the educational contract situation to car hire: across the EU, car hire contracts are standardised and include insurance, etc. etc. whereas in the USA each contract is unique to the hire company and there are huge differences between companies' contracts, trapping the unwary. Note that this is not an argument for exemption from contract over-ride, but an argument for a standardised contract. Not the same thing at all.
Of course, along with a DCE offering standardised educational usages the proper solution to this problem is Fair Contract Law for IP, with an ombudsman to arbitrate.
You might want to consider all of the above in your submissions to the IPO.
Commercial use of Orphan Works, and Extended Collective Licensing of any work, are a breach of Human Rights
And before we go any further, this ruling is case law. It is not merely the opinion of a barrister or legal counsel: this ruling is authoritative. It sets a binding legal precedent that BT, the loser in this case, have said they will not appeal. It stands.
In its entirety, this ruling establishes in UK law that:
- copyrights are property rights protected by Article 1 of the First Protocol of the European Convention on Human Rights, as also expressed in Article 1 of the First Protocol of the Human Rights Act 1998;
- piracy of copyright work is a breach of the copyright holder's human rights;
- the copyright holder is therefore entitled to legal redress;
- and, because 'so far as possible, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with human rights', legislation drafted and enacted subsequent to the enactment of the Human Rights Act 1998 must also be read and given effect in a way which is compatible with human rights.
It follows that any proposed legislation to enable the commercial use of orphan works or the extended collective licensing of copyright works, which is intended to result in a copyright holder in practice being 'deprived of his possessions' without his knowledge or consent (which Mr. Justice Arnold has judged to be the consequence for rightsholders of piracy of their copyright work) would breach Article 1 of the First Protocol of the Human Rights Act 1998.
Of course, the Human Rights Act 1998 also safeguards the 'general interest’, and limited exceptions to individual human rights may be made in that interest, subject to the doctrine of proportionality:
The European doctrine of proportionality means that, "an official measure must not have any greater effect on private interests than is necessary for the attainment of its objective".
Exactly how the courts should approach issues of proportionality was discussed by Lord Steyn in the case of R (Daly) v SSHD  2 WLR 1622, in which he said at paragraph 27: "The contours of the principle of proportionality are familiar. In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing  1 AC 69 the Privy Council adopted a three-stage test. Lord Clyde observed, at p 80, that in determining whether a limitation (by an act, rule or decision) is arbitrary or excessive the court should ask itself: "whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective."
Human Rights obligations transcend economic policy: Reminds all Governments of the primacy of human rights obligations over economic policies and agreements; - United Nations Sub-Commission on Human Rights resolution 2000/77
Are the benefits likely to flow from orphan works legislation and/or ECL so overwhelming that they justify
a) limiting a fundamental right (i.e. copyright), and
b) damaging, if not wrecking, several creative industries?
The key question here, in the Facebook and Twitter era in which anyone with a smartphone becomes in practice an author and rightsholder of work of potential commercial value, and also has moral rights in that work which are protected by international human rights treaties, is this:
How can it be in the interests of the general public to deprive them en masse of their human rights, in the 'general interest'?
Such a thing would obviously be a non-sequitur, especially as alternative ways of satisfying the general interest with regard to orphan works exist such as making lawful the digitisation for preservation, cultural display and cultural use of orphan works, as Stop43 and others advocate, and which would not breach international human rights or copyright law:
‘Section 42 of the act [CDPA 1988] restricts use of a preservation copy to preserve a fragile item or to replace a lost item. If Section 42 were extended to cover all types of work, whether orphan or not and in any medium, but these use restrictions continued, libraries and archives should be content.’ - Professor Charles Oppenheim, member of JISC Working Group on Intellectual Property Rights, commenting on Will Gompertz’ blog, 16 May 2011 (our emphasis).
Any legislation enabling the commercial use of orphan works or blanket ECL, and therefore breaching our fundamental human rights, would obviously fail the three-stage test of proportionality.
Authors' Moral Rights and Copyright are established as universal, fundamental Human Rights by international treaties that oblige their signatories to implement their provisions in domestic law. The UK is signatory to and bound by at least five such treaties:
• The Universal Declaration of Human Rights, Article 27:
1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
2. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
• The International Covenant on Economic, Social and Cultural Rights, Article 15:
1. The States Parties to the present Covenant recognise the right of everyone:
(a) To take part in cultural life;
(b) To enjoy the benefits of scientific progress and its applications;
(c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
2. The steps to be taken by the States Parties to the present Covenant to achieve the full realisation of this right shall include those necessary for the conservation, the development and the diffusion of science and culture.
• The Charter of Fundamental Rights of the European Union, Article 17
Right to property
1. Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest.
2. Intellectual property shall be protected.
• Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, Article 1
• The European Convention on Human Rights, Article 1 of the First Protocol.
In UK law the property rights are expressed in Article 1 of the First Protocol of the Human Rights Act 1998, the wording of which is identical to Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, Article 1, and The European Convention on Human Rights, Article 1 of the First Protocol; and which states:
Protection of property
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
Human Rights obligations transcend economic policy: Reminds all Governments of the primacy of human rights obligations over economic policies and agreements; - United Nations Sub-Commission on Human Rights resolution 2000/77
Let us be clear. As a fundamental, universal human right, copyright and moral rights belong to anyone who ever creates anything, with few exceptions. Opponents of copyright are at pains to obscure this fact and make out that these are a) narrow professional rights and b) that in any case they are invariably taken into ownership by the big corporations. This is nonsense.
20C Fox vs. BT (‘Newzbin2’)
The Hon. Mr. Justice Arnold passed judgement in this case on 28 July 2011. BT have stated that the action was a test case and they will not appeal the judgement. It therefore stands as UK case law, sets legal precedent, and demonstrates that the English courts are prepared to take this problem absolutely seriously and to make human rights their starting point in a judgement in a copyright case. This is extremely important, as it makes it much harder for the government to pretend that it can set aside this country's commitments to human rights when seeking to pass laws that would go against the fundamental principles of copyright.
The judgement rules:
1. This case is about the legal remedies that can be obtained to combat online copyright infringement. The Applicants (“the Studios”) are six well-known film production companies or studios that carry on business in the production and distribution of films and television programmes. The Studios are members of the Motion Picture Association of America Inc, and they bring this application in a representative capacity on behalf of all group companies of the Studios that are owners or exclusive licensees of copyrights in films and television programmes. The Respondent (“BT”) is the largest internet service provider (“ISP”) in the United Kingdom. By this application the Studios seek an injunction against BT pursuant to section 97A of the Copyright, Designs and Patents Act 1988 (“CDPA 1988”).
19. The problem of online copyright infringement is by now a very well-known one. The nature and scale of the problem so far as sound recordings are concerned were eloquently described by Charleton J of the High Court of Ireland in his judgment in EMI Records (Ireland) Ltd v UPC Communications Ireland Ltd  IEHC 377 at -.
22. I accept that online copyright infringement is a serious problem for copyright owners such as the Studios and the other rightholders who support this application, but in general it is one whose impact is difficult to quantify with any confidence.
75. The legal context for the present application consists primarily of (a) domestic and European human rights legislation and (b) three European Union directives relevant to copyright enforcement and the domestic implementing legislation [our emphasis]. I shall set out the relevant provisions here. I shall also have occasion to make reference to certain other legislative provisions later in this judgment.
[Note that despite the action being brought under the Copyright, Designs and Patents Act 1988 section 97A, Mr. Justice Arnold includes human rights legislation within the legal context and mentions human rights legislation before copyright legislation.]
76. Section 3(1) of the Human Rights Act 1998 (“HRA 1998”) requires that “So far as possible, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with human rights.” Section 6(1) provides that “It is unlawful for a public authority to act in a way which is incompatible with a Convention right”, and section 6(2)(a) defines “public authority” as including a court.
77. The Convention rights that are relevant in the present case are those guaranteed by Article 10 of, and Article 1 of the First Protocol to, the European Convention on Human Rights.
164. Before considering this argument, it is convenient to begin with the position with regard to Convention rights adopted by counsel for the Studios in his skeleton argument before the argument was advanced by counsel for BT. This may be summarised in the following propositions. First, the Studios’ copyrights are property rights protected by Article 1 of the First Protocol. Secondly, the right of freedom of expression under Article 10(1) is engaged by the present application.
165. None of these propositions was challenged by counsel for BT.
[This is not surprising. The Theft Act 1968 makes it clear that copyright infringement (a.k.a. ’piracy’) is appropriation, and therefore theft:
Section 3 states:
1. Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner.
Section 6 states:
1. A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other’s rights...
It follows that any legislation which would have the same effect in practice on the owner’s rights of rights-holders and their property as the appropriation described above would legalise such theft, but in so doing breach Article 1 of the First Protocol, as Mr. Justice Arnold’s ruling goes on to make clear.]
183. I do not read Kitchin J as having said that, if the court has jurisdiction to grant an injunction which protects third party rightholders in addition to the applicant rightholders, nevertheless it would be wrong in principle to grant such an injunction. Furthermore, as noted above, it is clear that the matter was not argued before Kitchin J in any depth. In particular, it seems clear that Kitchin J was not referred to any of the relevant jurisprudence under the Human Rights Act 1998. As counsel for the Studios pointed out, it is now well-established that, where the court is aware from the evidence that the Convention rights of persons other than the parties are engaged, then it is not merely entitled, but obliged, to take them into account. This is particularly well-established in the privacy context, where the courts now routinely take into account, and where appropriate protect, the Article 8 ECHR rights of third parties which are engaged: see e.g. ETK v News Group Newspapers Ltd  EWCA Civ 439,  EMLR 22 at -.
[With reference to orphan works and the human rights of their absent rights-holders, the above paragraph makes clear that ‘it is now well-established that, where the court is aware from the evidence that the Convention rights of persons other than the parties are engaged, then it is not merely entitled, but obliged, to take them into account.’]
185. In my judgment, subject to the points that remain to be considered, the Studios have established their entitlement to an injunction under section 97A.
200. In general, I am satisfied that the order sought by the Studios is a proportionate one. It is necessary and appropriate to protect the Article 1 First Protocol rights of the Studios and other copyright owners. Those interests clearly outweigh the Article 10 rights of the users of Newzbin2, and even more clearly outweigh the Article 10 rights of the operators of Newzbin2 [our emphasis].They also outweigh BT’s own Article 10 rights to the extent that they are engaged.
In its entirety, Section 6 of the Human Rights Act 1998 states:
Acts of public authorities.
1. It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
2. Subsection (1) does not apply to an act if—
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
3. In this section “public authority” includes—
(a) a court or tribunal, and
(b) any person certain of whose functions are functions of a public nature, but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.
4. F1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5. In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private.
6. “An act” includes a failure to act but does not include a failure to
(a) introduce in, or lay before, Parliament a proposal for legislation; or
(b)make any primary legislation or remedial order.
Section 6 appears to encompass civil servants, employees of Executive Agencies of the government, and their consultants and sub-contractors in its definition of 'public authority'. Under this section it can be argued that work by such persons in drafting legislation which would in practice have the effect of depriving the public of its human rights is unlawful under Section 6(1) of the Human Rights Act 1998.
As we said earlier, a Spanner in the Works.
- Article updated 2011/08/27, adding reference to the Theft Act 1968, and paragraph 183 from the Judgement and reference to its application to the rights-holders of orphaned works
- Article updated 2011/09/01, adding references to the European legal doctrine of proportionality, and the Charter of Fundamental Rights of the European Union, Article 17
- Article updated 2011/09/11, adding reference to the primacy of human rights over economic policy as expressed in the United Nations Sub-Commission on Human Rights resolution 2000/7
The DCE had been central to Hargreaves' plans for the Diligent Search which will be essential before any work can be declared an orphan (and then used without the rights-holder’s permission). Alternative search procedures will therefore be central to the forthcoming consultation. Searches would be greatly simplified, and the need for searches largely obviated, if we had the automatic, unwaivable Moral Right to our names on our pictures. The IPO clearly has no intention to legislate for that, either. Creators will have to re-introduce the case for moral rights during the consultation - they do clearly require legislation - but nobody is listening. The IPO is racing ahead with OW/ECL, knocking all obstacles aside, in the hope of establishing a UK scheme before Europe issues its Orphan Works Directive and thereby limits the scope of the IPO’s ambitions.
There is however one major obstacle that neither they, nor anyone else, has so far considered. Stop43 has drawn to the IPO's attention the possible consequences of the recent judgement in the case of Twentieth Century Fox (and others) versus BT. Brought under the Copyright, Designs and Patents Act 1988 Section 97A, Mr. Justice Arnold ruled that:
The legal context for the present application consists primarily of (a) domestic and European human
rights legislation and (b) three European Union directives relevant to copyright enforcement and the domestic
...and held that Newzbin2’s piracy of the Studios’ copyright property, facilitated by BT, was a breach of the Studios’ human rights under Article 1 of the First Protocol of the European Convention on Human Rights, enacted in UK law in Article 1 of the First Protocol of the Human Rights Act 1998.
BT have stated that the action was a test case and they will not appeal the judgment. It therefore stands as UK case law and sets legal precedent. By ruling that copyright is a property right protected by human rights law, Mr. Justice Arnold has thrown a legal spanner into the IPO works. All UK legislation must comply with human rights law.
The IPO will now have a difficult job explaining how using our copyright works without our knowledge or consent through OW/ECL schemes will not constitute an infringement of our human rights.
- Digital Copyright Exchange: good and getting much better, so long as works can also be registered solely to prove ownership or for cultural, non-commercial purposes
- Orphan Works: cultural use potentially excellent; commercial use unworkable, contradictory and illegal under various laws including the Berne Convention Article 9, WTO TRIPS Article 13 and fails the Berne 3-Step Test
- Extended Collective Licensing: as Hargreaves envisages it, illegal under under various laws including the Berne Convention Article 9, WTO TRIPS Article 13 and fails the Berne 3-Step Test
- IP Fast Track in the Patents County Court: excellent, and not before time, subject to concerns over costs, accessibility and damages
- Better remedies for infringement: effective, proportionate and dissuasive' remedies required by EU Directive 2004/48/EC ignored in both Hargreaves’ Report and Government Response
- Automatic, unwaivable Moral Rights: ignored in both Hargreaves’ Report and Government Response
- Fair Contract Law for IP: ignored in both Hargreaves’ Report and Government Response
- IP Ombudsman: ignored in both Hargreaves’ Report and Government Response
- Parody: highly problematic for photographers and graphic artists; probably of little overall economic value
- Format Shifting: problematic for photographers but sensible for some other media, of little overall economic value
- The Intellectual Property Office: its constitution as a quasi-independent, self-supporting, profitable business creates a fatal conflict of interest. It must not become prosecutor, judge and jury in copyright matters.
DIGITAL COPYRIGHT EXCHANGE
This could potentially be brilliant. Well, we would say that, as it is so clearly based on Stop43's National Cultural Archive proposal. Search the other submissions: there is nothing else like it in any of them. Hargreaves was notably vague on some important details, especially concerning license fees and charges for use. The Government have clarified this, and in the right way; they say the DCE would need to:
- Allow prices to be set or negotiated by the rights holder, subject to controls on unfair competition (such as the tariffs currently set by the Copyright Tribunal);
- Serve as a genuine marketplace independent of sellers and purchasers, for example on the model of independent traders using amazon.co.uk to sell goods, rather than simply being an aggregated rights database;
- Be open to access by individuals and businesses, free at the point of use, to open standards that mean firms can readily write software to automate access and provide services that rely on information gathered or licences purchased via the DCE, to facilitate the development of businesses in the emerging markets supported by the DCE;
- Be run on a self funding basis, fees being charged on licensing transactions through the exchange rather than the upload of rights data or search of the database.
The Government has been silent on Hargreaves' suggestion that only works registered with the DCE should enjoy the fullest extent of protection available under law. This is surprising, as this proposal clearly breaches the Berne Convention Article 5. An equitable DCE that complies with Berne cannot be based on double legal standards, with one law for works outside the DCE and a better one in.
With reference to compulsory registration, the Response says the DCE must:
- Be a compelling proposition to rights holders but not compulsory. We believe compulsory participation could be contrary to the Berne Convention and, more importantly, distort the market.
- a copyright and rights registry, to prove ownership and prevent orphaning;
- a gallery or repository of appropriate parented and orphaned cultural IP, so that the public can make cultural use of it;
- a commercial rights exchange, to create new IP markets and promote growth.
Stop43 maintain that in the networked digital era a machine-searchable rights registry is the only practical defence against orphaning, and Hargreaves agrees, but under no circumstances must lack of DCE registration become a presumption of orphan status. A search of the DCE can never be synonymous with a properly-executed Diligent Search.
Who will provide the DCE launch capital? Hargreaves suggests that the IPO might do this as it currently has an operating surplus of £55 million. This is problematic, as we will see later. Stop43 maintain that launch capital should be made available directly by central Government, and not a quasi-independent government agency such as the IPO with its conflicted interests.
The IPO Press Release says:
Among the recommendations that have been accepted are:
- Establishing licensing and clearance procedures for orphan works (material with unknown copyright owners). This would open up a range of works that are currently locked away in libraries and museums and unavailable for consumer or research purposes.
They are not. It is time to dispel this myth.
When their physical condition permits it, orphan works held in libraries, museums and archives are available for use by consumers and researchers in exactly the same way that they have always been, and parented works are: the general public can visit and view them in person:
‘The whole problem didn’t matter quite so much before digital delivery came around. The problem is that library and museum-users expect stuff to be digital.’ - Toby Bainton, Secretary, Standing Committee on National and University Libraries (SCONUL), quoted in “In from the Cold: An assessment of the scope of ‘Orphan Works’ and its impact on the delivery of services to the public”, page 25
Stop43 advocates reform of CDPA 1988 Section 42 to enable custodians of orphaned works in any medium to digitise them for preservation, and when appropriate to make the digital facsimiles available to the general public for its cultural use, which includes private research, but not commercial use. So does the EU in its proposed Orphan Works Directive.
‘Section 42 of the act [CDPA 1988] restricts use of a preservation copy to preserve a fragile item or to replace a lost item. If Section 42 were extended to cover all types of work, whether orphan or not and in any medium, but these use restrictions continued, libraries and archives should be content.’ - Professor Charles Oppenheim, member of JISC Working Group on Intellectual Property Rights, commenting on Will Gompertz’ blog, 16 May 2011 (our emphasis).
Why, then, the overweening need for commercial use of orphans by the Cultural Heritage Sector? Ah, so that Google can pay for their digitisation! And the British Library can PPP to produce a closed, proprietary-format iPad app! And the Cultural Heritage Sector can flog other commercial stuff, all without payment to rights-holders!
In truth, the larger problem is not yesterday's orphans, but today's and tomorrow’s. Every day the BBC routinely strips identifying metadata from the hundreds of images uploaded to its websites, effectively orphaning most of them, in clear breach of the Copyright, Designs and Patents Act 1988 Section 296ZG. Facebook does it by the tens of thousand. Hargreaves wants these future orphans available for commercial use so that 'innovative startup companies' can offer ‘new services’, without permission of or payment to their copyright holders, and in the Facebook era, anyone with a smartphone is a creator and copyright-holder.
The spread of smartphones and social networks will render photographs and video clips the most orphaned media in the future, with photographs probably being the most orphaned of all.
In a meeting at the House of Commons on May 9th 2011, before Hargreaves published his Report, DCMS Select Committee Chairman John Whittingdale said that the Orphan Works/Extended Collective Licensing Clause 43 had had to be removed from the Digital Economy Bill because it would have harmed photographers unduly: "the Government had simply forgotten about them".
Well, they haven't this time. The campaign against Clause 43, led by Stop43, put photographers firmly centre stage. Since then the entire UK photographic industry has expressed its unanimous opposition to commercial use of orphan photographs and its requirement of automatic, unwaivable Moral Rights in all circumstances as a prerequisite to any kind of orphan works or extended collective licensing scheme involving photographs or graphic works, in a list of six caveats to the British Copyright Council's Orphan Works Proposal (Appendix IV), submitted to Hargreaves and independently to the DCMS, BIS and others.
Searching the Response PDF for the words 'photo' and 'moral' produces no results whatsoever. One can only conclude that this time we have not been forgotten but deliberately ignored, except when our recommendations suit Hargreaves: Stop43 are mentioned by name twice in his Report - the only photographers' representative organisation so mentioned - in support of his Digital Copyright Exchange proposal.
Hargreaves recommends that orphan works should be made available commercially for a nominal fee:
4.58 The system should also not impose inappropriate costs, particularly on use of materials which were not created for commercial purposes, or which might be found to be out of copyright if the rights information were available. Therefore, in most cases the fee for use of orphan works would be nominal, recognising that the works involved represent a national treasure trove.
The Government’s reply states:
The Government will this autumn bring forward proposals for an orphan works scheme that allows for both commercial and cultural uses of orphan works, subject to satisfactory safeguards for the interests of both owners of ‘orphan rights’ and rights holders who could suffer from unfair competition from an orphan works scheme. These would include diligent search for rights owners, licensing at market rates for commercial use and respect for the rights of ‘revenant’ owners that come forward. (our emphasis).
So much for the 'national treasure trove', then. Hargreaves' view of an orphan work is essentially that it has been abandoned and can therefore be considered as having little value to its owner. The Government's response implies its recognition that this is rarely the case and that most works become orphaned without the knowledge or consent of their owners, against their wishes, and thereby invalidates Hargreaves' entire commercial orphan works paradigm and his recommendations based upon it. Unfortunately, the Government still seems not to recognise that there is no safe way to use an orphan photograph commercially, and that there is no such thing as a 'market rate' for an orphan photograph.
Those now in Government understood and accepted our arguments last year, when they were in Opposition, and used them to get Clause 43 thrown out by the government of the day. Why, now, do they ignore them?
EXTENDED COLLECTIVE LICENSING
The Berne Convention Article 9 is simple, straightforward and unequivocal:
(1) Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorising the reproduction of these works, in any manner or form.
(2) It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.
In its entirety, the Berne Convention guarantees creators the rights to decide whether and where they are going to publish, and in what format(s); freely to negotiate their own publishing contracts and licensing agreements; and to negotiate in person, or through agents of their own choice, as they see fit.
Extended Collective Licensing attempts to redefine copyright from being the right of the creator to control the making of copies to a right to be paid something for the use of that copy, if he or she is lucky. Creators do not want this: they wish to retain the rights Berne confers upon them, to manage their own copyrights, or negotiate with agents of their choice to do it for them. They do not want the whole process taken out of their hands. It disempowers them, and it will undermine what they get paid, and kill this country's cultural industries.
The British Screen Advisory Council's Orphan Works and Orphan Rights paper's Annexe C describes eight possible means by which the commercial use of orphaned works might be legislatively enabled. Of these eight, six definitely breach international law, EU law, or both; one probably breaches Berne; and the remainder only avoids breaking these laws by removing any practical legal remedies against infringement, inviting massive piracy and destroying creators’ and rights-holders’ livelihoods.
The BSAC Working Group has tried hard to be objective, considering that its members include such commercial orphan works enthusiasts as Google’s chief UK lobbyist Sarah Hunter and the British Library’s Head of Intellectual Property, Ben White. Perhaps that is why their paper ignores the evidence it has gathered, as detailed in its Annexes, and nonetheless advocates enacting no less than three of these suggestions, international and EU law notwithstanding.
Strictly speaking, any collective licensing scheme that extends the licensing of works beyond those of authors who have voluntarily placed their work under the control of a collecting society breaches Berne Article 9. WIPO, which is responsible for administering Berne, TRIPS and other international IP treaties, appears to turn a blind eye to existing extended collective licensing schemes such as DACS' photocopying licence and the Nordic Kopinor ECL scheme in which the vast majority of authors can be expected to be professional, aware of the existence and function of the relevant collecting society, be members of that society, and properly receive remuneration from it for secondary uses such as photocopying that cannot practically be licensed in the normal way.
The British Screen Advisory Council's Orphan Works and Orphan Rights paper's Annexe D provides a clear and succinct description of Kopinor ECL, from which it can readily be concluded that the ‘collateral damage’ of illegal orphan works licensing is small, and in practice acceptable in relation to the benefit enjoyed by the vast majority of properly registered authors, as is the ‘collateral damage’ similarly caused by DACS’ schemes.
Hargreaves' Extended Collective Licensing proposal is the diametric opposite of Kopinor: the vast majority of works will be orphan, not registered with the DCE, and collecting society members will be reimbursed disproportionately at the expense of the absent orphan authors. No matter how you try to finesse the argument, this is clearly in breach of both the spirit and the letter of the Berne Convention.
Hargreaves says that Extended Collective Licensing:
4.51 …should not be imposed on a sector as a compulsory measure where there is no call for it, and individual creators should always retain the ability to opt out of ECL arrangements.
Who constitutes a 'sector'? Who will make the call? How will it be made? What happens if aggregators and marketers 'call' for it, but creators and rights-holders do not? Must the call be unanimous, or will large vested interests prevail?
IP FAST TRACK IN THE PATENTS COUNTY COURT
Stop43 wholeheartedly support this proposal, so long as it results in a process that is genuinely of practical use to photographers pursuing infringements of the typical small value of between £50 - £350, and if accompanied by damages provisions that amount to the 'effective, proportionate and dissuasive' remedies required by EU Directive Directive 2004/48/EC, and which UK law patently lacks.
Enact Lord Justice Sir Rupert Jackson's recommendations; give them teeth; and DO IT NOW.
BETTER REMEDIES FOR INFRINGEMENT
In their submissions to Hargreaves’ review, all photographers’ representative organisations called for better remedies for infringement.
EU Directive 2004/48/EC says:
3.5. The compensatory and dissuasive effect of damages
Measures, procedures and remedies provided for by the Directive must be effective, proportionate and dissuasive. At present, damages awarded in intellectual property rights cases remain comparatively low. Only a few Member States have reported an increase in the damages awarded, as a result of implementing the Directive.
According to information received from rightholders, damages awards do not currently appear to effectively dissuade potential infringers from engaging in illegal activities. This is particularly so where damages awarded by the courts fail to match the level of profit made by the infringers.
The main aim of awarding damages is to place the rightholders in the same situation as they would have been in, in the absence of the infringement. Nowadays, however, infringers' profits (unjust enrichment) often appear to be substantially higher than the actual damage incurred by the rightholder. In such cases, it could be considered whether the courts should have the power to grant damages commensurate with the infringer's unjust enrichment, even if they exceed the actual damage incurred by the rightholder. Equally, there could be a case for making greater use of the possibility to award damages for other economic consequences and moral damages. (our emphasis).
Civil remedies against infringement currently available under UK law are very clearly not effective, proportionate and dissuasive, notwithstanding the blandishments of No. 10 Downing St.
Again, Hargreaves is silent about this save his Berne-breaching proposal that infringement of DCE-registered works might attract enhanced damages:
- providing that remedies, for example damages, are greater for infringement of rights to works available through the licensing exchange than for other works;
- making DEA sanctions apply only to infringements involving works available through the exchange
To reiterate: a two-tier copyright system in which it is necessary to register work in order to enjoy the fullest protections and remedies available under law is clearly and obviously in breach of the Berne Convention Article 5.
‘Peter D wants to make it an offence to strip out metadata identifying the owner. it already is illegal under Sections 296ZG and 77 of the [CDPA 1988] Act. At the moment it is just a civil offence, so the aggrieved rights owner has to sue. I would support making it a criminal offence if done recklessly or repeatedly.’ - Professor Charles Oppenheim, member of JISC Working Group on Intellectual Property Rights, commenting on Will Gompertz’ blog, 16 May 2011
Many UK IP markets are dysfunctional, dominated by oligopsonistic market bullies and riven by piracy and copyright infringement. This state of affairs cannot substantially improve to the benefit of creators and rights-holders, those entities who create the valuable IP upon which the ‘creative industries’ and the wider economy depend, unless creators and rights-holders have the automatic and unwaivable moral right to proclaim our authorship and ownership of our property under all circumstances, Fair Contract law extended to cover IP so that we cannot be coerced out of our rights, and genuinely effective, proportionate and dissuasive remedies.
Both Hargreaves and the Government’s Response are silent on these matters. Why?
Despite the limitations of his remit, Hargreaves says:
1.4 Policy should start from careful assessment of these costs and benefits in the light of evidence and accepted economic theory. At the same time, non-economic factors meriting consideration (such as the important moral rights of authors not to have their work misrepresented) can be weighed in the balance.
11.2 We do not propose any diminution of existing non-economic IP rights, as we take the view that rights granted for non-economic purpose, such as the moral rights of creators to prevent usage of their work in unacceptable contexts, are compatible with the economic goals upon which the Review was asked to focus.
How nice of him. Of course, he also says:
2.6 ...There is significantly less empirical evidence on the economic effects of design rights and next to no evidence on copyright policy.
- and on the basis of 'next to no evidence on copyright policy' proposes commercial orphan works and extended collective licensing schemes that in practice would render creators' copyright and moral rights worthless. In this regard his entire Report is one big non-sequitur. He also entirely fails to acknowledge that a market economy can only function properly if participants have the right to assert their ownership of their property under all circumstances, which for IP includes the right to assert authorship, and which the CDPA 1988 Moral Rights Exceptions subvert. Intriguingly, the Government Response says:
The ownership information is clearly a prerequisite for the marketplace and would itself be a powerful tool against infringement (there would be no excuse for not checking a single, publicly accessible register) and a valuable first step in any diligent search for the owner of possible orphan works.
And so the Government recognises that a DCE can only function properly if it is based on an ownership registry, and yet fails to recognise that many authors, notably of photographs used in newspapers, magazines and some books, lack the right to assert their ownership in the first place, and that all authors can be coerced into waiving their Moral Rights and copyright by unfair contracts imposed by oligopsonistic buyers. This contradiction must be addressed and rectified in further consultations.
FAIR CONTRACT LAW FOR IP
Hargreaves and the Government blithely big up the value of IP and the 'creative industries' to the UK economy, and yet remain silent on the anomalous exclusion of IP from Fair Contract legislation. Schedule 1, clause 1(c) of The Unfair Contract Terms Act 1977 (UCTA) states:
Sections 2 to 4 of this Act do not extend to-
(c) any contract so far as it relates to the creation or transfer of a right or interest in any patent, trade mark, copyright [or design right], registered design, technical or commercial information or other intellectual property, or relates to the termination of any such right or interest;
Sections 2 to 4 of the Act deal with Negligence Liability, Liability arising in Contract and Unreasonable Indemnity Clauses. These subjects are the real financial killers for creators on the receiving end of them. Schedule 1, clause 1(c) effectively deprives creators of protection under UCTA and leaves us prey to oligopsonistic market bullies, as detailed in our evidence to the Hargreaves Review.
Stop43 have described how several of the photographic markets have failed as a consequence of endemic predatory contract terms and rights-grabs. This situation can only be improved, and proper, tax-yielding growth stimulated in these markets, by the immediate repeal of Schedule 1, clause 1(c) of The Unfair Contract Terms Act 1977. Hargreaves knows this, because we have told him so. Why the silence?
Contract disputes require a recourse to arbitration. Hargreaves suggests that the IPO could offer 'statutory opinions' or Ofcom might arbitrate:
10. An IP system responsive to change. The IPO should be given the necessary powers and mandate in law to ensure that it focuses on its central task of ensuring that the UK’s IP system promotes innovation and growth through efficient, contestable markets. It should be empowered to issue statutory opinions where these will help clarify copyright law.
4.37 The IPO might take responsibility for oversight of the new Digital Copyright Exchange, as part of its responsibility for copyright policy. An alternative would be to look to Ofcom which already has experience and expertise in issuing and overseeing national and international licensing processes, along with experience and responsibilities in online enforcement. Ofcom also has Competition Act powers, which would enable it to act as an effective first tier watchdog of competition issues in the growing UK digital rights market.
Stop43 are wary of both of these proposals.
We believe that the IPO's constitution creates a conflict of interest, of which more later. Since the appointment of British Library CEO Dame Lynne Brindley to Ofcom we have lost confidence in its impartiality: whenever we find a public sector body promoting extended collective licensing or commercial orphan works usage, we invariably find Brindley or Ben White, her Head of Intellectual Property, in there somewhere, cheerleading:
‘The proposal [Clause 43] was nearly... enacted as part of the Digital Economy Bill for orphan works. It's our view that that was and still remains fit for purpose and should be reintroduced to Parliament, hopefully as part of the Communications Bill planned by the Coalition Government.’ - Dame Lynne Brindley, Chief Executive, The British Library, speaking at the IP for Innovation and Growth event at the RSA, 2nd. March 2011. Speech written by Ben White.
Creators and rights-holders will only have confidence in an arbitrator untainted by commercial orphan works lobbying.
Neither Hargreaves' Report nor the Government's Response have explicitly considered the interaction between fair dealing for parody and the Moral Right to object to derogatory treatment of work, one of the IP rights guaranteed as a minimum by our membership of the Berne Union. It can't be repealed.
Tens of millions of people, members of the general public, create works that thanks to Berne are automatically protected by copyright, and have sentimental value to them that cannot be quantified in monetary terms. What if a cherished loved one's image is used in a way offensive to its owner, but nonetheless legally because it qualifies as parody under the proposed exception?
Let’s be clear. It's not that we object to parody in principle; we like a laugh as much as the next person. It's that we must retain our right to object when 'parodic' use becomes derogatory. Parody is alive, well, and shows little sign of being stifled by current copyright law. There have been very, very few cases in which artists have exercised their Moral Right to object to derogatory treatment of work and thereby stifled parody: so few that it rather proves the point that there is no overwhelming need for a parody fair dealing exception. It can therefore be argued that a parody exception would fail the proportionality test:
The European doctrine of proportionality means that, ‘an official measure must not have any greater effect on private interests than is necessary for the attainment of its objective’: Konninlijke Scholton-Honig v Hoofproduktchap voor Akkerbouwprodukten  ECR 1991, 2003.
Moreover, the recommendation for fair dealing in parody does not discriminate between different media, dealing with each appropriately, but it should. In the case of photography, altering a photograph without permission for the purposes of parody infringes the copyright holder's moral right of integrity. This is particularly important as authenticity is the very essence of a photograph, especially a documentary or news photograph, and it is fundamental to an author's reputation. Furthermore, a photograph incorporated unaltered into a work of parody should command a reproduction fee in the normal way.
Introducing a parody exception is likely to be of little growth-stimulating economic benefit, except of course to our old friends Google, the 2.4% UK corporation-tax-paying US corporation whose advertising revenue will increase with every virally-popular 'parodic' work posted to YouTube.
There are at least three separate issues hiding under this umbrella: digitisation for preservation, non-commercial home copying, and home copying that would supplant sales.
Digitisation for preservation
The Cultural Heritage Sector likes to plead that current law prevents it from digitising cultural artefacts rotting in its basements, and that they will be lost forever. In fact they won't; the CDPA 1988 already allows copying for preservation purposes of most kinds of media. As we have said earlier on the subject of Orphan Works, and as Professor Charles Oppenheim advocates, Stop43 recommend that CDPA 1988 Section 42 be rationalised as a matter of urgency to allow the digitisation of any work strictly to preserve it, and where appropriate make it available for cultural use.
Most of the argument around home copying appears to concern itself with the transfer of IP from legitimately-bought CDs, DVDs, etc. to devices such as iPods. It seems to us that this problem is largely the result of the music and film industries allowing the public to labour under the misapprehension that they have "bought" and "own" their music and films, whereas in fact they have bought a License to Use conferring the right to enjoy these works domestically but not to copy them. Probably these industries thought the public too stupid to understand the difference. Perhaps so, but no wonder the public is confused. The film industry is now taking steps to put this right, and its UltraViolet scheme intends to replace the "sale" of films with a more rational, general License to Use that allows for format-shifting, use on multiple devices, and physical backups.
Home copying that would supplant sales
Many social and wedding photographers and portrait houses base their businesses on print and album sales. In doing so they guarantee quality products for their clients and maintain their professional reputations. A general Home Copying exception would not only endanger a major income stream, but also catastrophically undermine reputations for quality. While Stop43 are careful to avoid special pleading, any proposed Home Copying Exception must take particular note of these consequences and include appropriate and effective safeguards.
THE INTELLECTUAL PROPERTY OFFICE
Throughout this commentary we have referred to Hargreaves' proposals as if they emanate exclusively from the man himself. But this is obviously not the case, as he admits:
'I would like to conclude by thanking the team, based in the Intellectual Property Office, which has worked with me to deliver this independent review. Because it is independent, I bear responsibility for its content, but I have relied very heavily upon the expertise and unstinting hard work of the IPO team.'
Let us take a look at the IPO, because its attitudes towards creators, rights-holders and copyright have remained remarkably consistent for the past decade, despite the change of Government:
- It is an Executive Agency, rather than a department of the Civil Service. It is a self-supporting business, and run as such. Its charter, revised Feb 2011, states:
- Achieve a return on capital employed of 4%.
- Achieve the savings target set by BIS of £6.3m for 2010/11.
- Demonstrate improvement in our people’s perceptions of leadership and change management capability at all levels of the IPO compared with 2009.
- 90% of IPO customers will be satisfied with the service they receive.
- It makes its income out of registering patents, trademarks and design rights: Our main business is to grant patents and register designs and trade marks in the UK. We also handle applications for European Patents, Community Trade Marks (CTMs), Registered Community Designs (RCDs) and international patent and trade mark applications for the World Intellectual Property Organisation (WIPO).' - IPO charter
- It currently runs at a surplus. Hargreaves says: ‘The IPO’s reserves stood at £55m at the end of March 2010.'
- The IPO charter goes on to say: 'We are the Intellectual Property Office. As an Executive Agency of the Department for Business Innovation and Skills (BIS) we promote innovation by providing a clear, accessible and widely understood intellectual property (IP) framework, to enable creators, users and consumers to benefit from knowledge and ideas. A key component of this framework is the granting of intellectual property rights (IPR)... We develop UK law on copyright, which includes unregistered design rights and rights of performers.'
- This history of the IPO says: 'The Intellectual Property Office became an operating name of The Patent Office on 2 April 2007. The Patent Office was set up in 1852 to act as the United Kingdom's sole office for the granting of patents, although the origins of the patent system stretch back at least a further 400 years. The Designs Registry was set up in 1839 to protect industrial designs and its responsibilities transferred to The Patent Office in 1875. The registration of Trademarks became a Patent Office function in 1876.'
- It is not clear at what point the Patent Office was put in charge of copyright law. On its website the IPO describes its own role as follows: 'We are the official government body responsible for granting Intellectual Property (IP) rights in the United Kingdom.'
- 'Innovation' has been the IPO buzzword from the start: 'The nifty new logo incorporates the slogan 'For Creativity and Innovation'.' - IPKat blog
'Because it is independent, I bear responsibility for its content, but I have relied very heavily upon the expertise and unstinting hard work of the IPO team.'
The picture clearly painted is of an Executive Agency run as a self-supporting business charged with achieving a return on capital employed of 4%, which at some indeterminate point was made responsible for developing UK copyright law but makes no money from copyright, has offered the use of its £55 million surplus as seed capital for the establishment of the DCE (and presumably requires a 4% return on it), and wishes to be the source of 'statutory opinion' on copyright matters. It intends to be the prosecutor, judge, jury and financial beneficiary of all things copyright. How innovative.
Such an entity cannot by any stretch of the imagination be considered disinterested or impartial. It is riven with conflict of interest and Stop43 has little faith in it. Hargreaves' proposed DCE Champion had better be entirely detached from it or he will utterly lack credibility with creators.
A great deal of what is proposed by Hargreaves and endorsed by the Government's Response is moot, as the Response makes clear:
'The UK must work within international agreements and European law as well making the case with international partners for changes to meet the challenges of the future.'
The Government is restricted by international treaties to which it is signatory such as the Berne Convention and WIPO TRIPS, and also subject to compliance with EU Directives such as the 2001 copyright Directive and proposed Orphan Works Directive, both of which severely limit exceptions to copyright and what may be permissible with orphaned works.
So Hargreaves’ Report and the Government’s Response are mostly just posturing, then. Let's see what can really be done.
Article updated 2011/09/01, adding reference to the European legal doctrine of proportionality with regard to a parody exception)
Her first article covered Hargreaves’ proposals on Fair Dealing, and her second investigated his proposed Digital Copyright Exchange. This one concerns itself with Hargreaves’ proposals for Extended Collective Licensing of our work, within which he includes ‘a solution for orphan works’.
Of all these articles, this is the most important as it clearly and incontrovertibly reveals Hargreaves’ purpose: to enable mass digitisation schemes and subvert the primary licensing of our work, rendering any of our property not registered with his Digital Copyright Exchange as opted-out of these schemes liable to mass commercial exploitation at little or no cost to the exploiters.
Dr. Spraggs says: ‘Hargreaves defines orphan works, conventionally enough, as ‘works to which access is effectively barred because the copyright holder cannot be traced’. [4.52] But in his proposals ‘orphan’ very often means simply ‘a work that has not been opted out of an ECL scheme... 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.’
‘What is being presented overtly as a solution to a cultural problem, the existence of works whose copyright owners cannot be traced, is actually a set of proposals designed to override the basic principles of copyright and the standard procedures for rights clearance. The object of this is to facilitate mass-digitisation programmes.’
Who are the intended beneficiaries of this? It certainly won’t be the works’ creators and rights holders, who will receive no direct payment or be able to claim damages beyond the ‘nominal fee’ paid for this use. Dr. Spraggs goes on:
‘...the supporting document Economic Impact of Recommendations... makes it completely clear that these mass-digitisation programmes would include schemes run for profit by commercial entities. Furthermore, [this] document... is explicit about the fact that the mass-digitisation of public libraries and archives, which is presented as a benefit of the scheme, would be done with a view to sublicensing the materials to commercial entities...’
[The British Library has already done this with out-of-copyright work it holds, entering into exclusive commercial digitisation and publication deals with Amazon, DC Thompson/brightsolid and now, BiblioLabs/Apple. Hargreaves’ proposals would enable them, the BBC and others to do the same with our known, parented, copyright work.]
‘Hargreaves mentions ‘national libraries, the BBC archive and private collections’. [4.48] The IPO team mentions the British Library and the BBC. But the IPO document is completely open, as the main report is not, about the fact that a key aim of the proposed legislation would be the possible creation of ‘new businesses around content rich services’.’
Ah. Our Prime Minister’s old friends, those dynamic, entrepreneurial internet startups, the golden hope of our economic revival. The British Library and the BBC, both of whom champ at the bit to plunder commercially our ‘national treasure trove’ of orphaned work. And, of course, Google: there is no need for US-style ‘Fair Use’ in the UK if, under Hargreaves, you can make any use of an unregistered work at little or no cost to yourself.
Needless to say, Dr. Spraggs’ analysis agrees with ours: Hargreaves proposal would entirely breach the Berne Convention Articles 9.1, 9.2 and 5.2, to which the UK is signatory and bound under international law.
Hargreaves and the IPO have been exposed as shabby and devious. As Dr. Spraggs says, crucial detail has been omitted from or fudged in his main report, the document most have read, and left to the IPO Review team’s little-read supporting documents.
Dr. Spraggs again: 'Hargreaves’ proposals are closely similar to Clause 43 of the Digital Economy Bill, which was struck from the Bill at the last minute on the insistence of the parties that have since formed the coalition government. This was mainly due to the hard work of a number of photographers who pointed out the flaws in the legislation.’
After agreeing with Stop43 about the flaws in Clause 43 and the intractable problems of ECL and commercial orphan works licensing, for those same two parties to resurrect Clause 43 now that they are in government would be a national disgrace.
Hargreaves is not all bad. From a photographer’s perspective three of his recommendations should be acted upon without delay: digitisation of all kinds of orphaned media for preservation and conservation purposes; a rôle for Ofcom in regulating digital competition; and the implementation of Lord Justice Sir Rupert Jackson’s recommendation of a Small Claims fast track in the Patents County Court.
It would be best if the Government, after thanking Professor Hargreaves in their official response for his most interesting report, were then to put it onto a shelf to gather dust along with its predecessors and quietly forget about the rest of it. Just like its predecessors.
Her first article covered Hargreaves’ proposals on Fair Dealing. This one concerns itself with Hargreaves’ proposed Digital Copyright Exchange.
Gill has proved herself a shrewd and incisive analyst; her work is exhaustively researched. We recommend you follow her series.
Her first article covers Hargreaves’ proposals on Fair Dealing.
Gill has proved herself a shrewd and incisive analyst; her work is exhaustively researched. We recommend you follow her series.
Professor Hargreaves says:
‘[Paul] thinks that it [the Digital Copyright Exchange] will breach the Berne Convention by making copyright protection conditional on participation. The report is clear that rights holders should have all the protections they have now, whether participating in the DCE or not. As a benefit it suggests that DCE participation should bring ADDITIONAL entitlements for rights holders, as well as the greater access to, and thus potential to license, their works.’
His report suggests on Page 33:
- providing that remedies, for example damages, are greater for infringement of rights to works available through the licensing exchange than for other works;
- making DEA sanctions apply only to infringements involving works available through the exchange
Article 5 of The Berne Convention, to which the UK is signatory, states:
(1) Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this Convention.
(2) The enjoyment and the exercise of these rights shall not be subject to any formality; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work. Consequently, apart from the provisions of this Convention, the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be governed exclusively by the laws of the country where protection is claimed.
(3) Protection in the country of origin is governed by domestic law. However, when the author is not a national of the country of origin of the work for which he is protected under this Convention, he shall enjoy in that country the same rights as national authors.
The central ideas in Article 5 are that you can't treat people from other countries worse than you treat your own, and this equality of treatment must not be subject to formality.
Berne says nothing about allowing foreigners only some of the rights that nationals have, because nationals must register to gain further rights such as greater damages for infringement: Berne 5 merely says ‘the rights’, which must be accorded ‘without formality’.
That DCE registration would offer important benefits - among them guaranteed parentage - in practice is in no doubt, but It follows that under his proposal, foreigners will have to register in order to enjoy the same levels of protection in law as UK nationals, and registration is a ‘formality’. Professor Hargreaves’ coercive legal proposals would therefore discriminate against foreign rights-holders, and in so doing breach Berne Article 5.
It could be argued that DCE registration would not discriminate against foreigners if, without formality, they are accorded the right to register. Informed legal opinion appears to be divided, which is why there is no legal consensus about whether the statutory damages available for infringed works registered with the US Copyright Office breach Berne or not, and there is no international case law to settle this matter.
The intention and spirit of the Berne Convention is that creators must hold their rights ‘without formality’. Two-tier copyright systems based upon registration clearly go against the intention and spirit of Berne.
The USA, which signed the Treaty in 1988, is the only Berne signatory that has a two-tier copyright system. Stop43 has been informed by international IP lawyers that the continuation of the USA’s existing registration system was the political price paid by WIPO to gain the USA’s signature to the Treaty. The UK is already signatory and bound by its Terms, and can be expected to pay a political price for breaching them.
Given this uncertainty over the legality in international law of two-tier copyright systems, the UK should err on the side of caution and not deliberately create one here.
Stop43’s initial response to his Report is the collated, consensus opinion of all of our members who were available to read it on its day of publication, and not just the opinion or misreading of one member. If we have all misapprehended its meaning, this can only be a result of vital, key points being omitted or buried among details. How, otherwise, did we all miss them? Our starting point was one of optimism.
Having been badly misrepresented ourselves, Stop43 have no wish deliberately to misrepresent others. However, we reserve the right to base our analysis on POSIWID.
POSIWID: The Purpose Of a System Is What It Does.
“The purpose of a system is what it does. This is a basic dictum. It stands for bald fact, which makes a better starting point in seeking understanding than the familiar attributions of good intention, prejudices about expectations, moral judgment or sheer ignorance of circumstances." - Stafford Beer
‘POSIWID refers to the commonly observed phenomenon that the de facto purpose of a system is often at odds with its official purpose... [and] is generally invoked to counter the notion that the purpose of a system can be read from the intentions of those who design, operate or promote it’ - Wikipedia
Professor Hargreaves says:
‘Paul says the Digital Copyright Exchange will breach the law if it sets prices. But the report makes it quite clear the exchange won’t do that. It says that pricing is a judgement for licensors.’
We are grateful for this clarification and glad that this is his intention.
However, given that pricing is a crucial function of the Digital Copyright Exchange, and not a minor detail, we are surprised that we all missed this in our initial reading of the Report and have been unable to find explicit mention of it in the text. Such a crucial characteristic should not be hidden in detail or left to be inferred; it must be stated unambiguously and explicitly. We would be grateful to Professor Hargreaves if he would quote the relevant text to us, please.
Other crucial characteristics of the Digital Copyright Exchange appear to remain undefined. We have tried and failed to find explicit answers in the Report’s text to the following questions. We have placed Stop43’s National Cultural Archive proposal’s answer in parenthesis:
- Will there be a registration fee to join the DCE? (NCA: No. Any registration fee would preclude mass participation.)
- Will the DCE be entirely free to submit to and to use non-commercially? (NCA: Yes. Again, fees for non-commercial use would preclude mass participation.)
- Will commercial submissions and searches be chargeable? (NCA: No. Search fees would burden businesses small and large with substantial and onerous additional costs.)
- Will submissions be automatic, compulsory for publishers and voluntary for creators? (NCA: Yes. This is the only way to guarantee mass participation and create a genuine de-orphaning system.)
- Will it efficiently allow creators, rights-holders and users to negotiate usage fees in the normal way? (NCA: Yes. A properly functioning market depends on the ability of buyers and sellers individually to agree prices via negotiation.)
- Will it create a two-tier copyright system, with only registered users enjoying the maximum protection of their IP rights that the law provides? (NCA: No. Apart from moral and ethical concerns, Stop43 believes this to be a mechanism of market distortion, as Simon Crofts argues.)
Again, we would be grateful to Professor Hargreaves if he would quote to us his Report’s text in which these questions are answered explicitly.
We will respond to Professor Hargreaves’ remarks in a subsequent post.
ORPHAN WORKS AND EXTENDED COLLECTIVE LICENSING
International lawyer-turned-photographer Simon Crofts has dealt with this clearly and succinctly on his blog. His verdict: “Hargreaves orphan works proposals couldn’t work”. Stop43 agrees with his opinion and the reasoning behind it.
Professor Hargreaves says:
‘Paul has also suggested in the Stop 43 response that anything not registered with the DCE will become orphan. That’s the opposite of what the review says. I have proposed a means of guaranteeing against orphaning. Nobody would be obliged to take it up, but it’s simply perverse to construe this as Paul does.’
Whilst the DCE will in practice guarantee against orphaning, it will foster the idea that any IP not registered can be assumed to be orphan, and even if it is not can be treated as such, as Simon Crofts says:
‘Yes, I know that strictly speaking, unregistered works would still have copyright attached to them. But that right would be worth little. A copyright owner would only be able to enforce copyright protections where they could prove that the person wanting to use the work knew who the owner of the image was and went ahead anyway. Otherwise, that person would be fully entitled to pay £1 and use the image as they wished. If the owner of the image found out, they could claim no damages at all for the use up to that date (except, perhaps, for claiming the £1). Yes, they would then be entitled to negotiate a licence for future use, in practise that would very rarely happen. The state sponsored copyright thief would simply move on to the next £1 image.’
‘The real practical effect of Hargreaves’ proposals would be to remove copyright for unregistered works as far as UK law is concerned in all but name, except in the few cases where the copyright owner could really and positively prove that the person using the image couldn’t possibly have not known their identity.’
This is the case in the USA, where few lawyers will consider taking on a case in which the infringed IP is not registered.
Stop43’s National Cultural Archive proposal would circumvent these problems by not allowing commercial use of orphan works, which removes the expense of administering commercial orphan works licences; and by having no submission or research fees, encouraging the maximum participation. The NCA would be effective in reuniting parents and orphans, and in generating licensing transactions, but it would not be not essential to take part for the purposes of copyright protection and so would not discriminate against creators outside the UK or those in the UK whose work is not part of the NCA. Therefore, the NCA as we envisage it would not breach Berne, or TRIPS, or cause market distortion.
POSIWID. The Purpose Of a System Is What It Does.
Using POSIWID analysis the purpose of Professor Hargreaves’ combined DCE, ECL and orphan works proposal appears to be to create a relatively small, legitimate gulag of professional, registered work in the DCE and turn the uncountable billions of unregistered amateur and user-generated works into dirt-cheap fodder for the wider economy. Of course, that is exactly what he was asked to do: fuel the Government’s Plan for Growth by the massive and wholesale transfer of property rights from individual creators - which in the Facebook era means almost everyone - to private enterprise and the Cultural Heritage Sector, which is the POSIWID purpose of Fair Use. It would result in the biggest transfer of value in the UK from the weak to the strong since The Enclosures.
Oh, and because DCE-unregistered foreign-owned IP will essentially become regarded as orphan under his proposed system, his purpose is also potentially to expose any orphan work licensee to the wrath of US Copyright Office-registered rights-holders:
‘So, you’ve bought your £1 licence to use an image, and stick it in your ad campaign. You then discover that the image comes from the US, and it was registered for copyright protection there. You have perhaps a $150,000 law suit on your hands for each image used. The £1 license that you bought from your UK licensing authority turns out to be worthless. If this scenario seems fanciful, then ask the Daily Mail, who are currently being sued for $1,000,000 in the US for using several images without permission (they’re being sued for $150,000 per image). If those images had been UK images, they would have got away with it, and could only have been sued for peanuts even if they had been caught. If they had been unregistered in the UK, the Daily Mail could have happily paid £1 per image to make it all right under UK law. And then of course been sued for $1,000,000 in the US.’ - Simon Crofts
- No US-style “Fair Use”: Hargreaves admits the impossibility of grafting US case law onto the UK legal framework, but then sets about trying to achieve its equivalent by other means.
- A rôle for Ofcom in regulating digital competition: an excellent suggestion. How else are failed IP markets and oligopsonistic market bullies to be dealt with?
- Small Claims fast track in the Patents County Court: another excellent suggestion, to implement Lord Justice Sir Rupert Jackson’s recommendations from 2009.
- The Digital Copyright Exchange. Potentially brilliant, and obviously based in part on Stop43’s National Cultural Archive proposal, the devil will be in the detail and Hargreaves has been notably vague in four vital areas:
- Is it to be entirely free to submit to and to use non-commercially?
- Will submissions be automatic, compulsory for publishers and voluntary for creators?
- Will it efficiently allow creators, rights-holders and users to negotiate usage fees in the normal way?
- Will it avoid the creation of a two-tier copyright system, with only registered users enjoying full legal protection of their IP rights?
- If the answers are yes, then the Digital Copyright Exchange has Stop43’s wholehearted support. If the answers are no, or it will be used to impose automated and standardised pricing, commoditising our IP, or its purpose is simply to enable the commercial use of orphan works, then we are implacably opposed to it.
- No Strengthening of Moral Rights: this is absurd. How are we supposed to trade our property if we lack the right to assert our authorship of it? The Moral Rights exceptions are obsolete. We are amazed that Hargreaves has chosen to duck this issue, hiding behind his “hard economics” remit. The Digital Copyright Exchange cannot function properly without automatic and unwaivable moral rights.
- No Fair Contract Law for IP: another serious omission. Involving Ofcom in IP disputes is a good step, but the number of such disputes can only significantly be reduced by fair contract law. Germany has Fair Contract Law for IP; it is a larger economy than ours, is growing faster, and has thriving publishing and IP markets. There’s your evidence, Professor Hargreaves. Bring it here.
- Extended Collective Licensing and commercial use of Orphan Works: this is disastrous; Clause 43 with knobs on. There is not even any attempt to charge a “market rate”; orphan works are to be licensed for a nominal fee. Clearly a sop to Big Culture, the BBC and those “internet entrepreneurs” we hear so much about, it is also the Big Stick to force everyone’s IP into the Digital Copyright Exchange.
The practical result will be to orphan anything not registered with the Digital Copyright Exchange, including the uncountable billions of amateur images, and thereby massively expand the number of orphan works. Rather than turning off the orphan works tap, this proposal turns it into a fire-hose. It is also massively in breach of the Berne Convention and TRIPS international copyright treaties, to which the UK is signatory.
Professor Hargreaves has adroitly dealt with the poison chalice he was handed in this Review by pouring the poison all over creators:
‘The British Film Institute estimates that if legal provisions enabled it to trade in orphan works it might generate an additional annual gross income for itself of more than £500,000.’
That is little more than half the annual turnover of a single top-end advertising photographer. We thought this Review intended to stimulate growth! Commercial orphan works licensing will trash this photographic business sector in the UK and drastically reduce its tax contribution, and all to give the BFI half a million quid?
‘4.54 ...It is very possible that some real discoveries are hidden in these archives and it is certain that new generations of creators will use some of these works in new ways – just as Romeo and Juliet led to West Side Story and scores of other adaptations – allowing new economic value to be realised. Opening up orphan works is a move to which there is no national economic downside.’
Pure James Boyle, and as disingenuous as it comes. Romeo & Juliet has been out of copyright and in the public domain for centuries. Of course there is a national economic downside - loss of income from commercial uses of their work by the “orphan” rights-holders, severe disruption to the market for new works, and consequent loss of UK tax revenue from creators who pay far higher effective rates of tax than “entrepreneurs” and global corporations. Paragraph 4.54 is an absolute disgrace.
Hargreaves rejects Fair Use as being incompatible with EU law, and instead advocates Extended Collective Licensing, commercial Orphan Works use and (perhaps, we don’t know; Hargreaves doesn’t say) a Digital Copyright Exchange automated and standardised pricing system, all of which are incompatible with EU law.
On top of this he insists on registration with the Digital Copyright Exchange as a prerequisite to full legal IP protection, an absolute breach of Berne’s “without formality” principle that will create a two-tier copyright system.
If access to and registration with the Digital Copyright Exchange is not free of charge, this is probably also in breach of Human Rights legislation: one must not be required to pay to enjoy the full protection of the law.
The key to this report lies in these two statements:
2.6 ...There is significantly less empirical evidence on the economic effects of design rights and next to no evidence on copyright policy. The lack of economic evidence on copyright may reflect a public debate shaped by a desire to provide creators with a “just reward” rather than by hard economics...
4.58 ...in most cases the fee for use of orphan works would be nominal, recognising that the works involved represent a national treasure trove. We recognise that there will be concerns from some rights holders who fear that a growing resource of almost free to use orphan works could injure markets for other works. This is a good example of a case where wider economic interest outweighs the perceived risk to rights holders.
Hargreaves’ evidence-based Review proposes to deprive us of our rights and trash our businesses in the ‘wider economic interest’ on next to no evidence.
I’m a creator. Inevitably, despite my best efforts, some of my work has been or will become orphaned. Just when did my property suddenly become part of a “national treasure trove”? When did amateur work, not created for commercial gain, suddenly become fair commercial game for resellers and users without payment to its owners? If this was suggested for physical property it would rightly be regarded as outrageous.
Where’s Lewis Carroll when you need him?
article last updated 2011/05/19 16:30
Stop43 welcomed that statement and are happy to submit our evidence and proposals to the Independent Review of Intellectual Property and Growth being conducted by Professor Ian Hargreaves. We have answered the questions published on the Review's website that we think pertinent to photographers and graphic artists as creators of Intellectual Property. We have:
- listed the deficiencies and defects in current copyright and contract law and the legislative changes that photographers require;
- provided evidence to support our requirements; and
- detailed our proposal for an innovative, free online machine-searchable metadata registry that will make cultural digital Intellectual Property including so-called "orphan works" freely available to the public for their Cultural Use, enable rights-holders to find and readopt their "orphan works" and make them commercially licensable; educate the public about Intellectual Property Rights and enforce digital copyright law; streamline the licensing process; and act as a market-making infrastructure strengthening the entire cultural Intellectual Property sector, self-funded by levies on licensing transactions that it facilitates.
In a spirit of transparency and openness our entire submission is made public here.
Single-Page Summary for Policymakers
Alternatively, Download the PDF of the full submission
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?