stopped Commercial Orphan Works Exploitation in the UK Digital Economy Bill Clause 43

The AOP's position is clear

On Tuesday April 6th, at the end of the Second Reading of the Digital Economy Bill, Stephen Timms, former MP for East Ham, and Financial Secretary to the Treasury, stood up, waved the “BAPLA letter” and said the following:

“I welcome the statement about clause 43 made last week by a number of photography organisations, including the Association of Photographers, the National Union of Journalists, the Royal Photographic Society and Getty Images, welcoming changes made to the Bill in the other place and looking forward to working with Government on the regulations to be made under clause 43.” - Hansard.

This announcement startled the Conservative Front Bench, who until that point had not known of the “BAPLA letter”. The Association of Photographers, a signatory of that letter, observing proceedings and realising that their true position regarding Clause 43 had just been publicly misrepresented, moved quickly and that night sent an email to Ed Vaizey and Jeremy Hunt, then Conservative Shadow Ministers for Culture, Media and Sport. The email clearly restates the AOP’s opposition to the Bill becoming law with Clause 43 intact.

The AOP have kindly provided us with a PDF of that email. Its text is reproduced below:


Having followed the second reading of the Digital Economy Bill in the House of Commons today, as well as speaking to Paul Ellis this evening [who is both an AOP member and the architect behind Stop43]; I believe it would help if I made the AOP’s position very clear with regard to Clause 43

As I believe Gwen [Thomas] mentioned to you, when you met last Monday, the AOP’s view on Clause 43 has always been first and foremost that it should be totally removed from the Digital Economy Bill and that separate Primary Legislation be drawn up and introduced to deal with the complex issue of Orphan Works.  

In spite of amendments made to date, Clause 43 as currently laid down, remains unacceptable and totally unworkable in practical terms [we should know, the production, licensing and usage of images is our members’ primary business!].  In addition, no mention has been made of photographers’ moral rights as conferred under the CDPA 1988, which we would like to see become inalienable, in a similar way to that which Germany has adopted.

Indeed, no practical consideration has been given at all to the means by which any owner of copyrighted work can search a register or database [yet to be determined] on a daily basis, to see if any of their work [in some cases, hundred of thousands of images taken over half a life time] has been registered.  It is also important to remember, that digital images are collections of pixels and not text-based characters that can easily be searched for.

If, however, clause 43 cannot be removed and separate Primary Legislation not be drafted in its place; we agreed with other like-minded organisations [the NUJ, RPS, DACS, Getty] to co-sign a letter drafted by BAPLA, that stated our joint and unified concerns regarding the clause [this letter superseded a previous and stronger letter written by Getty’s lawyers, before clause 42 became clause 43].

I now understand that mention was made of this [BAPLA] letter in today’s debate, which if taken out of context or partially quoted, could provide a different view to that which was stated quite clearly in the body of the letter itself.  

The fact remains that the AOP is opposed to Clause 43 as it stands. We represent professional photographers and will uphold their rights and indeed the rights of all photographers.  As currently drafted, we believe that clause 43 is simply unacceptable and should be removed.

If it cannot be removed, we will work with the prevailing authority to ensure that photographers’ rights and concerns are clearly heard and understood.  This is because the final mechanism, what ever it is to fulfil the legislation [as stated], must work on a practical and legal basis, without creating further issues and difficulties that will then require additional legislation to work correctly.

We are not a political or commercial organisation – instead, we simply represent professionals, who conduct their business in an ever more complicated world.

Should you have any questions or wish to clarify any of the points stated in this letter, please call me at the office tomorrow on my direct line: 0208 749 4377, or on my mobile: 0207 749 4388.

Very best regards,

Kingsley Marten

Managing Director

The Association of Photographers Ltd.

Head Office & Registered Office:
81 Leonard Street