stop confiscation of your property and Human Rights in the UK Enterprise and Regulatory Reform Bill

BAPLA, the aftermath, and the future

“It’s not good enough just to win. The losing side needs to know they have lost.” - Genghis Khan
“Victory has a thousand fathers; failure is ever an orphan.” - Jeremy Nicholl

We have won the battle, but the losing side clearly doesn’t understand that they have lost. They appear to regard the vote on April 7th in which Clause 43 was removed from the Digital Economy Bill before it became the Digital Economy Act as a temporary setback, nothing more. This is made apparent by the disappointing and unseemly pronouncements of the British Association of Picture Libraries and Agents (BAPLA), erstwhile “protectors of photographers”, who continue to claim to be exactly that.

The thousands of photographers and other creatives who took part in the Stop43 campaign know what really happened during the past month, because they watched it unfold in real time on Parliament TV, the EPUK, Pro-Imaging and Association of Photographers email lists, the Facebook group, Twitter, and the Stop43 website.

As BAPLA's website statement demonstrates, BAPLA do not appear to understand this. They still seem to be operating on the obsolete command-and-control assumption that they can control the news. They appear not to have realised that photographers already know the truth because they have lived it, and that they are discredited in the eyes of every photographer who actively campaigned in any way.

“When you find yourself in a hole, stop digging.” - Will Rogers

Of more concern is Big Culture (museums, galleries, the British Library and others), Big Media (publishers and broadcasters) and the Intellectual Property Office (IPO), who have been outflanked by the Stop43 campaign. They won't take that lying down. An Intellectual Property Act is coming and they'll do their best to make it The Return Of Clause 43.

Big Media (also mislabelled the “creative industries”), and their potential gain from Clause 43, we’ve always known about. Unrestrained they tend to act like greedy landlords, thinking only of today, bullying their tenant farmers into selling the seed-corn of professional contributors in return for this year’s profit, hoping that next year’s crop will simply spring, unsown and crowd-sourced, from the ground.

But Big Culture? They and the BBC also stood to be big winners from Clause 43. From an initial position of needing simply for conservational purposes to be able to digitise cultural artefacts such as decaying film stock, audio recordings, negatives and prints, their wants and wishes grew to an all-encompassing desire to make all culture freely available, including contemporary culture, rather in the manner of Google Books.

Doubtlessly this was all egged on by questionable EU assertions of the “economic value” of so-called orphan works, conveniently forgetting that they are not “orphans” at all - each one, in copyright, is someone’s lost property.

And so Big Culture, apparently ignorant of the economic realities of professional creatives’ lives and forgetting that the bulk of the artefacts that they conserve and curate are the products of highly-skilled professionals (how does one acquire the skill to work at the highest levels without that work being one’s full-time occupation?), set about an intellectual property land-grab so extensive that it would have inevitably terminated the businesses and careers of most professional creatives. What task will they leave to future cultural conservators if their overarching scorched-earth desires wipe us out?

We’re not really surprised. Big Culture is largely staffed by salaried career administrators, relatively few of whom have direct experience of or real sympathy with the freelance professional creative life. No wonder they know not what they do. It’s time for us to tell them.

And then there is the whole “consultation” process that spawned Clause 43, from Gowers onwards. The participants all spent a long time studying, negotiating under the threat of the EU Big Stick of wide-ranging copyright exceptions and the IPO's unwavering assertion that inalienable moral rights are non-negotiable (because Big Media find them “onerous” and too expensive), and between them constructed a latticework “solution” that they remain persuaded to be the best available under the circumstances.

They all have a huge emotional investment in the work they have done and “solution” they have negotiated, and now that they see it under threat from ignorant hooligans they continue irrationally and aggressively to defend it. Never mind that their “solution” lacks all principle. In this whole debate, we have not once heard our central thesis or arguments gainsaid from a moral or legal standpoint. All we have heard are the bleatings and tantrums of special interests and the fabricated enumerations of supposed economic gain.

The IPO’s position is interesting.

The default position of all photographers’ “representative organisations” has always been that there can be no discussion of so-called “orphan works” licensing without a corresponding implementation of inalienable moral rights. The IPO wrote to a Stop43 activist:

“Ministers are not willing to change the existing law (which has been in place since 1988) in a way that one of the two parties affected is strongly opposed to." - referring to Big Media.

And so, instead, the IPO proposed to change the existing law (which has been in place since 1988) in a way that one of the two parties affected is strongly opposed to. Photographers.

The IPO can and will produce fabricated enumeration of the economic value of the commercial use of so-called orphan works that will always trump any economic damage to the photographic constituency that we can enumerate. Cost-benefit will always be on their side. Photographers’ only substantial arguments thus far have been moral, ethical and legal, and that is what the legislative process is supposed to be.

If the IPO’s original task was just to build an economic case for so-called Orphan Works Licensing and Extended Collective Licensing, they have made a good job of it. Unfortunately for them, life isn't merely economic. If it were, we'd also have the return of public hangings with ticket sales and media rights, because that could also be shown to be of overall economic benefit. Morals and ethics preclude it.

What next?

Big Media must accept inalienable moral rights for photographers, copyright and Fair Contract law applied to Intellectual Property as it is in Germany. The Germans clearly have:

•• an equivalent of the BBC
•• an equivalent of the British Library
•• an equivalent of Bauer Publishing
•• a local News Corporation operation.

Germany doesn't appear to be a publishing wilderness, so why should the UK become one, if we have our moral rights?

• Big Culture must abandon its overarching ambition to be the free delivery conduit of all forms of culture, past and present, at the expense of the businesses and careers of professional creatives. Digital preservation of decaying artefacts and the making of those digital copies available to the public for strictly cultural use must suffice. Our so-called “orphan works" are not little golden coins lying on the ground for the "creative industries" to pocket and the "cultural sector" to support itself with. Instead, Big Culture must content itself with commercial exploitation of work of known provenance that it has been bequeathed. Our ideas will help them. Read on.

• Photographers and other creatives must grasp the initiative and develop their own ideas for a proper solution to the so-called “orphan works” problem. We have, and we are, and given that perhaps surprisingly we’re not terribly vindictive people our initial thinking points to a possible solution that could result in a reasonable win for all, rather than the winner-takes-all for Big Media and Big Culture versus obliteration of freelance professional creatives of Clause 43. It will have to pass the Berne three-step test first, assuming that it is possible for any use at all of so-called “orphan works” to pass that test.

Because of the conflict of interests their membership appears to represent, BAPLA might best be advised to get out of the negotiating and lobbying game altogether. Their current attempts to rewrite widely-known recent history and save face with their sponsors are unseemly and should stop.

When I saw my (excellent) MP and she asked me why we'd left it so late to act, I said: "we'd been relying on our professional associations to negotiate on our behalf." "Always a mistake", she immediately replied. Lesson learned.