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

Open Letter to the Liberal Democrats

Don Foster MP, Shadow Culture, Media and Sport Secretary, and Olympics

Dear Mr Foster

As a result of today’s Second Reading in the House of Commons and the Liberal Democrats’ stated wish to amend rather than delete Clause 43, we feel it necessary to restate our position to you, so that there should be no misunderstanding.

1. It is morally and legally indefensible to demand the use of existing orphan works without simultaneously enacting effective measures to prevent the generation of future orphan works. We need such measures quid pro quo for conceding any use of any kind of our orphaned intellectual property. This is our property, remember.

2. You propose to exempt photographs made after 1950 from any Orphan Works scheme.

With the greatest of respect to others we would submit that we, photographers, some of us professionally active before 1950 and still active, are the authority on this subject. We have conferred among ourselves and cannot conceive of a reliable way to accurately identify that cut-off point for a very substantial proportion of photographs.

The problem also remains of damage to the residual value of pre-1950 photographs bequeathed in wills to photographers' children and successors. Although an admittedly small number of photographers will be very significantly affected in this way, we see no reason why they should suffer when we believe that our new thinking, which we promise to work with you to realise, might avoid such damage whilst simultaneously giving the cultural sector what they say they need.

3. You propose to exempt photography from any Extended Collective Licensing schemes.

In our view and experience, current copyright law suffers from significant defects in the way it applies to photography. We have already pointed out some of them in detail. The removal of photography from Extended Collective Licensing proposals will result in photography simply not being discussed when secondary regulation is drafted. As a consequence, this opportunity for professional photographers’ crying need for the defects in current copyright law to be addressed will be lost, perhaps for a generation. We will have no chance to re-negotiate inalienable moral rights or proper sanctions against copyright infringement, which could be raised if Clause 43 is deleted, and upon which point all photographers’ organisations, the NUJ, BAPLA, Getty Images and others are unanimous.

We urge the Liberal Democrats to consider what we believe to be the impracticality and negative consequences of your proposed amendments, withdraw them, and vote with the Conservatives to remove Clauses 43 and 46 from the Digital Economy Bill. This will allow the beneficial public and cultural intent underlying Clause 43 to be reintroduced in subsequent primary legislation after proper consideration, rather than in trying to amend something which we believe to be fundamentally flawed and unworkable.

In his speech, John Whittingdale MP, Chairman, Culture, Media & Sport Committee, stated that Clause 43 is not fit for purpose; Clause 46, if it is a Henry VIII clause, should not be passed. We, of course, agree.

Thank you.