Stop43.org.uk stopped Commercial Orphan Works Exploitation in the UK Digital Economy Bill Clause 43






The end of SABIP

On 19 July the Department for Business, Innovation and Skills announced changes in order to streamline its partner organizations by reducing the number of 'Arm's Length Bodies'. This includes the dissolution of the Strategic Advisory Board for Intellectual Property Policy (SABIP).

Evidently, BIS and the Department for Culture, Media and Sport agreed with our assessment of SABIP that as constituted it was not at all “independent”, existed in practice only to provide apparent legitimacy to the previous Government's Intellectual Property policies, and that its £750,000 annual budget could be better spent elsewhere.

Its reports were vacuous, based on questionable methodology, notably light on meaningful statistics, and in the main simply pleaded for further research to be carried out. A true QUANGO, then, primarily engaged in perpetuating itself and its “work”.

Stop43 does not mourn its passing.

Stopping the supertanker

Famously, because of their sheer mass and momentum, supertankers take a very long time to stop or change direction. Equally famously, they can cause appalling environmental pollution. Collectively, Clause 43’s proponents closely resemble a supertanker.

On the 19th of March, the British Library issued a press release triumphantly publicising its new relationship with brightsolid, owners of Friends Reunited and commercialisers of 1901 and 1911 UK Census data:

“The British Library's Chief Executive, Dame Lynne Brindley, will today announce a major new partnership between the Library and online publisher brightsolid... The ten-year agreement will deliver the most significant mass digitisation of newspapers the UK has ever seen: up to 40 million historic pages from the national newspaper collection will be digitised.”

“brightsolid is taking on the commercial and technical risks of the project, with no direct costs to the British Library. The firm will digitise content from the British Library Newspaper Library, which it will then make available online via a paid-for website as well as integrating it into its family history websites.”

Let’s just note that use of the word “commercial” for a moment. brightsolid continue:

"We're also closely linked to the publishing community through our parent company, DC Thomson and we very much see this project as a collaboration with the industry. In fact we are already in dialogue with some rightsholders and expect this to continue throughout the project.”

Unfortunately that dialogue doesn’t appear to include James Murdoch, Chairman and Chief Executive of News Corporation. The British Library press release continues:

“Along with out-of-copyright material from the newspaper archive - defined in this context as pre-1900 newspaper material - the partnership will also seek to digitise a range of in-copyright material, with the agreement of the relevant rightsholders. This copyright material will, with the express permission of the publishers, be made available via the online resource - providing fuller coverage for users and a much-needed revenue stream for the rightsholders.”

Mr. Murdoch doesn’t seem to be terribly keen on this:

“Take the current controversy over the Library’s intention to provide unrestricted access to digital material. Material that publishers originally produced – and continue to make available – for commercial reasons. Like the search business, but motivated by different concerns, the public sector interest is to distribute content for near zero cost – harming the market in so doing, and then justifying increased subsidies to make up for the damage it has inflicted.

The case of the British Library goes even further. Just yesterday, the Library announced the digitisation of their newspaper archive – originally given to them by publishers as a matter of legal obligation. This is not simply being done for posterity, nor to make free access for library users easier, but also for commercial gain via a paid-for website. The move is strongly opposed by major publishers. If it goes ahead, free content would not only be a justification for more funding, but actually become a source of funds for a public body."


To recap, the British Library intend to digitise in-copyright newspaper pages and make them publicly available. Everyone involved appears to forget that a typical newspaper page embodies multiple copyrights: the layout, text and photographs created by the publisher’s employees are the publisher’s copyright, but text and photographs syndicated or licensed from freelancers or agencies remain the copyright of their creators and rights holders. The publishers of said newspapers would not be the copyright holder - they are a licensee but not the licensor. Single use rights would have been assigned to the newspaper for the printed edition and payment made on that basis, so any further use, including digitisation, would require a broader and more expensive license.

We would question whether the publishers of the newspapers had acquired the rights to sub-license creative works for such a project.

James Murdoch, again:

“A public body like the British Library, for example, is not driven by a bottom line. But as an organisation, the Library has a clear incentive to extend the range of its services as widely as possible and thus secure more public funding to do so. This is a circular process: funding drives new activity, which creates more requests for funding; popularity makes demands on the public purse easier to bear.”

The Google Books Settlement came about because Google unilaterally set about scanning millions of books, wafted along by naïve euphoria from freetards, and in breach of copyright law. They're now so big and have such a stockpile of scanned books that they're almost an immovable object. Big Culture have watched this happen and wish to play the same game. In fact they're already a good way along that road, implementing plans drawn up and negotiated while the Digital Economy Bill was still in gestation, based on the assumption that Clause 43’s provisions for so-called Orphan Works Licensing and Extended Collective Licensing would by now be law.

Stop43 doesn’t object to digitisation to preserve Intellectual Property - in fact in our New Thinking proposal we advocate changes in copyright law to properly legalise it. We do object to its subsequent commercialisation without reference or recompense to us - creators. This British Library project does exactly what we object to.

The BBC has also been busy.
They seem very keen to talk down copyright, talk up so-called “orphan works” usage, and to loudly complain about how rights holders prevent the BBC from doing what they want.

Dame Lynne Brindley also figures in an earlier press release: “Dame Lynne Brindley DBE, Chief Executive of the British Library, appointed to Strategic Advisory Board for Intellectual Property (SABIP)”, whose remit is to "Provide Government with Independent, Strategic, Evidence-Based Advice on Intellectual Property Policy”.

SABIP’s report on The Economics of Copyright and Digitisation was published on 26 May 2010. The Executive Summary document itself contains no real information or facts and figures, just assertions. It poses questions but gives no real answers other than to direct the reader towards certain conclusions. SABIP's report offers implied solutions to the unstated problems and a distinct leaning towards Extended Collective Licensing as a way of easing the administrative burden whilst consistently ignoring the fact that they are dealing with other people's property.

Nowhere does the report appear to consider how independent freelance expert creators might develop and sustain their expertise if they are deprived of copyright of their works and income from their use. The report seems to us to be a way of bringing in Extended Collective Licensing and justifying the British Library exercise at the same time. Unsurprisingly, given that SABIP is a quango, the report pleads for further research to be carried out.

We note that SABIP's Board appears currently to consist of Dame Lynne Brindley, a career civil servant, a business consultant, a solicitor and what appear to be the heads of a regional quango and an investment company. The quangocracy laid bare, indeed. No-one involved appears ever to have spent any substantial part of their careers as independent creators of Intellectual Property, living on the proceeds of licensing their creations, or founded and run a company doing the same. Current, active, freelance creators of Intellectual Property are notably absent.

In the course of her career, Dame Lynne’s only foray beyond the groves of Academe and the public sector appears to have been a spell consulting for KPMG. SABIP is entirely composed of salaried, career academics and administrators, as are their secretariat and advisory staff.

We wonder how it might be that a supposedly independent advisory board influencing Intellectual Property policy should contain the Chief Executive of an organisation, namely the British Library, that directly stands to gain from policy recommended by that board. To us that appears to be an irreconcilable conflict of interest.

SABIP appears already to have been caught “sexing up” figures for the number of illegal downloaders of copyright works, perhaps unsurprisingly when SABIP’s advisory staff includes Shira Perlmutter, the International Federation of the Phonographic Industry (IFPI)’s Executive Vice President for Global Legal Policy.

We conclude that SABIP as currently constituted is not at all “independent” and exists in practice to provide apparent legitimacy to the previous Government's Intellectual Property policies. It costs nearly £3/4 million p.a. to run. We recommend that it be dissolved or reconstituted to be properly independent, balanced, and include active independent creatives.

Based on the above we fear that the previous Government's Intellectual Property supertanker has not even changed direction, let alone been stopped, by the failure of Digital Economy Bill Clause 43, the change of Government, and its new policies. We wonder what the Intellectual Property Office are doing at the moment (apart from laughably running events advising on how to protect your intellectual property): given that the British Library is the IPO’s official library and that two IPO executives sit ex officio on SABIP’s Board, we cannot conceive that the IPO were unaware of the British Library’s potentially lawbreaking agreement with brightsolid. The IPO has a reputation for being antagonistic towards individually-owned copyright.

And finally...
The EU intends to introduce a Directive on orphan works in the Autumn. It’s going to be a busy Summer, stopping that supertanker and preventing it from fouling our creative ecosystem with its spilled oil.

The New Thinking: a proposal to replace Clause 43

Since the completion of our successful campaign to remove Clause 43 from the Digital Economy Bill, Stop43 have not been idle.

Clause 43’s provisions were and continue to be ardently desired by many sections of “the creative industries” and others, not least because they stood to make or save a great deal of money from using our so-called orphan works. Consequently, our efforts continue to replace the inequitable and unworkable proposals contained in the failed Clause 43 with New Thinking, which we believe should benefit everyone.

HERE IT IS.

“We propose to allow “cultural use” of so-called orphan works and for this cultural use to switch all other uses and users to “known” works, to stimulate cultural and economic activity to the benefit of everyone.

To enable this we propose some changes to current copyright law and the establishment of a National Cultural Archive, which must be free to use.”

READ MORE...

This proposal was first presented at the 2nd National Photography Symposium on 8th May 2010. At the end of the presentation a vote was called, asking the audience if they supported the proposal in principle. They expressed almost unanimous support.

When evaluating this proposal, please do not focus on single points out of context. This proposal is a system. Please ensure that you have grasped its systemic nature before evaluating it. Constructive criticism on this basis is welcome; the proposal needs any weaknesses identifying and rectifying.

This is the first draft of a work in progress. A PDF version is now available (8.5MB). We invite positive criticism, comment and help, and a mailing list to facilitate this will also be available shortly.

VOTE! But for whom?

Individual MPs of all parties varied in their position from outright support of us, to indifference, to hostility. This is how they voted.

At the Second Reading, Labour policy was in favour of the entire Bill; Tory policy was in favour of the Bill with Clause 43 removed; Liberal Democrats wanted to retain and amend Clause 43 by limiting use of "orphan" photographs to those made before 1950 and removing photography from any Extended Collective Licensing schemes, but were also against passing the whole Bill in the washup process, wanting it to be deferred to the new Parliament.

By the time of the vote, Labour had moved to remove Clause 43 and both they and the Tories were in favour of the remainder. The Liberal Democrat amendment vanished with Clause 43 and they voted against the Bill. The Bill became an Act without Clause 43.

Clause 43 was removed from the Bill in back-room dealing quid pro quo for Tory support of other clauses. This is why the Government introduced the amendment to remove it, and why the following day Stephen Timms wrote to Frank Dobson that "legislation along similar lines would be introduced in the new Parliament":



“PS. Clause 43 was dropped from the Bill yesterday. Following further reflection, the Government will aim to reintroduce measures along similar lines when an opportunity arises in the new Parliament.”
- Stephen Timms, then Parliamentary Under-Secretary, Department for Business, Innovation and Skills; Financial Secretary, HM Treasury; to Frank Dobson MP in a letter dated 8 April 2010.

PLEASE VOTE FOR THOSE WHO HELP US, AND VOTE AGAINST THOSE WHO HINDER US.

The Photography Markets

Introduction

It is our concern that if appropriate legislation regulating digital copyright is to be drafted, it is first necessary to properly understand the varied markets for photography and their characteristic subcultures. Here is a contribution from photographers on this subject - one with which we are intimately familiar.

First, let us list the different genres (the subject matter or “content”) of photographs and the markets in which they are licensed.

Genres include:

• Portraits, Weddings & Social
• Landscape
• Wildlife & Nature
• Sports
• News, Documentary & Reportage
• Interiors
• Architecture
• Still Life
• Lifestyle
• Fashion
• Cars, Aviation & Transport

The difficulty and cost of creating images within and between genres varies widely. For example, anyone attending a public airshow can easily shoot pictures of aircraft from the ground for the price of the entry ticket. Photographing the same aircraft air-to-air from another is a far more demanding and costly affair.

Markets for photographs include:

Social and weddings (private commissions)
Fine Art
Editorial
Public Relations (PR)
Corporate
Advertising

"Stock photography" is not itself a market, but a means of supplying photography markets with pre-existing images. Similarly, photographic competitions are not a market, but are increasingly used by unscrupulous organisers imposing rights-grabbing entry terms to acquire libraries of stock photographs for commercial re-use at little cost to themselves.

Images with near-identical content are commissioned, created, valued, licensed and used very differently in different markets. With the exception of the Public Relations and Corporate markets, which overlap somewhat, it is highly misleading to assume that what prevails in one market is also true for others.

Few photographers are professionally active in all genres and markets. Most operate in multiple genres but only a few markets; others specialise in one or two genres but operate in multiple markets; the best-known photographers usually specialise in one or two genres and markets.

Each market for photography has its own distinct subculture based on its combination of the following factors:

• The Supplier/Client Ratio
• The Commissioning process
• The Creation and Production Process
• The Valuation Process
• The Licensing Process, including the prevalence of unfair contract terms and rights-grabs
• Usage, particularly usage restrictions, exclusivity, privacy, and whether the photograph will be subject to End Use or Further Use
• The proper functioning or failure of the market according to orthodox free-market theory.

SOCIAL & WEDDINGS

The Supplier/Client Ratio: all parts of the market are well-balanced with many suppliers servicing many clients. Both sides of the market overwhelmingly comprise individuals or microbusinesses.
The Commissioning process: private commissions. As such, images are private and no other use can legally be made of them without the consent of both the copyright holder (usually the photographer) and the commissioner. One of the great problem areas for any so-called “orphan works licensing” scheme.
The Creation and Production Process: varies from available-lightreportage” to full-blown lit location and studio work at the high end of the market.
The Valuation Process: fees negotiated directly between client and supplier. Many suppliers offer a tariff; the properly competitive nature of the market enables clients and suppliers easily to match quality, style, deliverables and fee to mutual satisfaction.
The Licensing Process: photographers automatically retain copyright. Images are licensed for private use.
Usage: images are used for private purposes. Deliverables tend to be photographic prints or wedding albums. These are traditionally End Uses. There is a recent trend towards the supply of accompanying digital media, which can result in unintended and unauthorised Further Use.
• This market functions well according to orthodox free-market theory.

FINE ART

The Supplier/Client Ratio: all parts of the market are well-balanced with many suppliers servicing many clients. Both sides of the market mostly comprise private individuals or microbusinesses; galleries sell prints to the public on behalf of photographers; some large cultural institutions collect photographs.
The Commissioning process: self-commissioned or, less frequently, private commissions. Images are private and no other use can legally be made of them without the consent of both the copyright holder (usually the photographer) and the commissioner. One of the great problem areas for any so-called “orphan works licensing” scheme.
The Creation and Production Process: the entire range of production methods and processes is represented. Prints are usually unique or produced in limited editions. Verifiable documented proof of provenance is of paramount importance.
The Valuation Process: fees negotiated directly between client and supplier. Valuations range from a few tens of pounds to tens of thousands - another of the great problem areas for any so-called “orphan works licensing” scheme.
The Licensing Process: photographers automatically retain copyright. Images are licensed for private use and public display.
Usage: images are collected and displayed for private, cultural and investment purposes. Deliverables tend to be photographic prints. These are traditionally End Uses. There is a recent trend towards the supply of accompanying digital media, which can result in unintended and unauthorised Further Use.
• This market functions well according to orthodox free-market theory.

EDITORIAL

The Supplier/Client Ratio: most parts of the market are oligopolistic, characterised by high concentration and grossly unbalanced with a great many suppliers competing to supply relatively few clients. The supply side of the market overwhelmingly comprises amateur, semi-professional and professional individuals or microbusinesses; clients mostly consist of large corporate media combines.
The Commissioning process: members of the public freely supply images for no fee, sometimes in return for a “byline” or credit; freelance professionals and microbusinesses supply “on spec”, sometimes at their own rates but usually at rates dictated by the client; clients also directly commission work from photographers or their agents. Clients usually use their market dominance to dictate terms. Picture Agencies and Stock Libraries also supply clients, often via commodity “subscription deals” in which the client is licensed to use a fixed number of images per day, week or month for an inclusive fixed fee.
The Creation and Production Process: the entire range of production methods and processes is represented.
The Valuation Process: clients usually use their market dominance to dictate fee levels, which are usually imposed on suppliers (“day rates”, “shift rates” and newspaper “space rates” are prime examples) although direct negotiation between supplier and client can occur, depending on an image’s perceived exclusivity and commercial value to the client. The Base Usage Rate method is sometimes used at the top of the market. Valuations range from free use to tens of thousands of pounds - another of the great problem areas for any so-called “orphan works licensing” scheme.
The Licensing Process: photographers automatically retain copyright but there is an increasing trend by clients towards rights-grabbing, usually for little or no extra fee beyond that for traditional limited editorial use. Book and magazine publishers are notorious for imposing onerous rights-grabbing contracts on suppliers, often also demanding that the supplier indemnify the publisher against the costs of potential unknown and unpredictable legal action as a result of publication over which the supplier has no control. Clients often insist that Internet use be included for no extra fee, or for a nominal fee increase. Newspaper and magazine publishers routinely publish images without offering payment to their owners, marking the use as “await invoice”, in the clear expectation that many such uses will go unnoticed and unchallenged, and thereby reduce licensing costs. Few other industries systematically defraud their suppliers in this way.
Usage: images are used in a non-advertising editorial context to illustrate books, magazines and newspapers, on commercial websites, in other media, and in an “educational” context. Licences are usually valid for a limited timespan, although the trend towards clients “wholly-owning” the work (as a consequence of their imposition of rights-grabbing contracts) is rapidly changing this custom. Deliverables are usually digital media and represent Further Use in that publishers will then use the digital media commercially in a multitude of ways to generate revenue for themselves. Along with social media websites, publishers and broadcasters are the main generators of so-called “orphan” photographs, usually by failing to credit the photographer and employing website systems that strip identifying IPTC metadata from the digital image files as they are uploaded. As an example, the BBC alone daily “orphans” hundreds of images in this way. Their behaviour is quite usual.
• Because of this market’s externalities, distortions and gross imbalance of power and competition between suppliers and clients, this is mostly a failed market according to orthodox free-market theory and can only be made to operate satisfactorily for suppliers by rectification of the deficiencies in current UK copyright law, inalienable Moral Rights for photographers and the extension of Fair Contract law to include Intellectual Property.

PUBLIC RELATIONS

The Supplier/Client Ratio: many suppliers service fewer clients, but the market is not grossly unbalanced. Suppliers overwhelmingly comprise freelance professionals or microbusinesses; clients range from small PR agencies through to large corporations, charities and public bodies.
The Commissioning process: PR agencies or corporate PR departments make direct contact with photographers or their agents to commission pictures.
The Creation and Production Process: the entire range of production methods and processes is represented, but many news photographers and photojournalists also undertake PR work, sometimes using lights and assistants, often unassisted and using available light or on-camera flash. PR work is often viewed as commodity photography, with little opportunity for the photographer to offer personal style and with it, scarcity value and higher rates.
The Valuation Process: fees negotiated directly between client and supplier. “Market” hourly, half-daily and day-rates predominate. In the extreme upper end of the market fees are based on the commercial value of the image to the client and the Base Usage Rate system is occasionally used.
The Licensing Process: most clients tend to have little grasp of copyright. Photographers automatically retain copyright but there is an increasing trend by clients towards rights-grabbing, usually for little or no extra fee beyond that for traditional limited PR use. Clients often insist that Internet use be included for no extra fee, or for a nominal fee increase. High-end clients tend to have a reasonable grasp of copyright and limited use.
Usage: Images are licensed for further free supply to publishers and others to illustrate articles favourable to the end-user client. Events illustrated range from “grip and grin” to corporate hospitality events and product launches. The PR market tends to confine itself to specific events and PR campaigns. Images are not licensed for advertising use. Licences are usually valid for a limited timespan, although the trend towards clients “wholly-owning” the work (as a consequence of their imposition of rights-grabbing contracts) is rapidly changing this custom. Deliverables are usually digital media and represent Further Use.
• This market is not “failed” according to orthodox free-market theory, but photographers do not regard it as functioning well, especially at the lower end. Much of this is due to ignorance of copyright. Inalienable Moral Rights for photographers and Fair Contract law extended to include Intellectual Property are required to make it function properly.

CORPORATE

The Supplier/Client Ratio: many suppliers service fewer clients, but the market is not grossly unbalanced. Suppliers overwhelmingly comprise freelance professionals or microbusinesses; clients range from small businesses through to large corporations, charities and public bodies.
The Commissioning process: SME’s, corporate press and marketing departments or design agencies working on their behalf make direct contact with photographers or their agents to commission pictures.
The Creation and Production Process: the entire range of production methods and processes is represented, but many news photographers and photojournalists also undertake corporate work, often using lights and assistants, occasionally unassisted and using available light or on-camera flash.
The Valuation Process: fees negotiated directly between client and supplier. “Market” day-rates predominate, but in the upper end of the market fees are based on the commercial value of the image to the client and the Base Usage Rate system is well-established. This is one of the great problem areas for any so-called “orphan works licensing” scheme.
The Licensing Process: at the lower end of the market, clients tend to have little grasp of copyright. Photographers automatically retain copyright but there is an increasing trend by clients towards rights-grabbing, usually for little or no extra fee beyond that for traditional limited corporate use. Clients often insist that Internet use be included for no extra fee, or for a nominal fee increase. Clients often assume that they “own” the pictures and are free to use them for any “corporate” purpose. High-end clients tend to have a good grasp of copyright and limited use.
Usage: Images are licensed for specified uses to illustrate Annual Reports, in-house magazines, corporate and marketing brochures and flyers, point-of-sale and below-the-line advertising materials, etc. The NUJ defines much of this work as “extended PR”. The corporate market can be considered an extension of the PR market, with the work not limited to specific events or campaigns, but not including above-the-line advertising. Images are not licensed for such advertising use. Licences are usually valid for a limited timespan, although the trend towards clients “wholly-owning” the work (as a consequence of their imposition of rights-grabbing contracts) is rapidly changing this custom. Deliverables are usually digital media and represent Further Use.
• This market is not “failed” according to orthodox free-market theory, but photographers do not regard it as functioning well, especially at the lower end. Much of this is due to ignorance of copyright. Inalienable Moral Rights for photographers and Fair Contract law extended to include Intellectual Property are required to make it function properly.

ADVERTISING

The Supplier/Client Ratio: many suppliers service fewer clients, but the market is not badly unbalanced. At the high end, few clients (usually advertising agencies working on behalf of the end client) commission work from relatively few highly-skilled specialists, usually via their agents. Suppliers overwhelmingly comprise well-established freelance professionals, microbusinesses or small businesses; clients range from SME’s through to multinational corporations, charities and public bodies.
The Commissioning process: advertising agencies and corporate marketing departments make direct contact with photographers (or more usually their agents) to commission pictures.
The Creation and Production Process: the entire range of production methods and processes is represented, but usually a pictorial concept will have been developed by creative staff at the advertising agency. The shoot will be directed by the advertising agency’s Art Director and usually feature professional models, stylists, property managers and others, all of whom work under contract, usually to the photographer or his producer. Model- and property-releases are essential and used as standard. The production process tends to have high production values and as a consequence be costly. The imagery will be for the exclusive use of the end client.
The Valuation Process: fees negotiated directly between client and supplier. Fees are based on the commercial value of the image to the end client. “Market” day-rates are often used, but in the upper end of the market the Base Usage Rate system is prevalent and well-understood.
The Licensing Process: most clients have a good grasp of copyright. Photographers automatically retain copyright. Images are licensed for specific uses, in specific geographic territories, for a specific length of time. Extra uses are costed as additional percentages or multiples of the agreed Base Usage Rate for that image. This is one of the great problem areas for any so-called “orphan works licensing” scheme.
Usage: Images are exclusively used to illustrate above-the-line advertising in newspapers and magazines, on posters, billboards, hoardings and in other media. Deliverables are usually digital media and represent Further Use.
• This market functions reasonably well according to orthodox free-market theory.