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

The Proposed Lib Dem amendments - our objections in detail

Stop43 have been asked to provide a more detailed explanation of our objections to the Liberal Democrats’ proposed amendments to Clause 43 of the Digital Economy Bill.

The Proposed Amendments:

Exempt recent photography from orphan works licensing

* Clause 43, page 52, line 20, at end insert 'subject to subsection (1A) below.

(1A) The regulations may not authorise the grant of a licence in respect of works of photography created after 1950.'

Exempt photography from extended licensing

* Clause 43, page 53, line 7, at end insert -

', or

(c) in respect of works of photography.'

Our Objections

1. We have stated our guiding principle, perfectly articulated by Viscount Bridgeman:

“It is a logical and legal absurdity to talk of licensing works whose authors cannot be identified while there are still significant groups of authors who do not have the right to be identified.”

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.

Such measures must be practically enforceable. It is already illegal under the Copyright, Designs and Patents Act 1988 amendment 296ZG of 2003 to knowingly strip metadata. It is almost impossible to prove that metadata was stripped knowingly with deliberate intent to infringe, facilitate or conceal infringement; consequently this provision is in practice unenforceable, as will be any similar provision.

2. In current copyright law, the financial penalties for copyright infringement are no greater than the licence fee payable had the infringed work been properly licensed before use. This creates a positive incentive for publishers to infringe because many of their infringements go unnoticed and unchallenged, with the result that their overall costs are significantly lower than if they legally licensed all of their content.

Photographers and other creatives suffer daily from the economic and misrepresentative consequences of such systemic infringement of their copyright. Among many, many others, The BBC is a known habitual serial infringer in this way and daily generates new orphans by the thousand, as a consequence of images uploaded to its website having their metadata stripped in the process. We are photographers - we have the evidence.

Preventing the use of orphan photographs made prior to 1950 (assuming that a workable method for reliably identifying such photographs can be found) will result in professional photographers’ crying need for the defects in current copyright law to be addressed to be accorded a much lower priority than if contemporary orphan photographs were also to be licensable. The removal of photography from any Extended Collective Licensing scheme will result in photography simply not being discussed when secondary regulation is drafted.

The combined effect of the two proposed amendments will be to accord a very low priority to rectification of the defects in current copyright law. The end result will almost certainly be the loss of any remaining opportunity 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 have already stated that we wish to be given the opportunity to introduce new thinking into this debate. Your amendments will deny us that opportunity.

Our new thinking will provide the “cultural sector” with what it says it needs. Sadly, we cannot necessarily provide what it wants, or what it might like, because the economic consequences of those wants and likes will probably terminate our businesses, and professional careers with them. The “cultural sector” - museums, galleries and libraries - collect, conserve and curate cultural artefacts. What task will they leave to future conservators if their scorched-earth wants and needs wipe out the current generation of professional creatives?

We believe that there is no viable middle way. We call upon the Liberal Democrats to withdraw their proposed amendments and act now to remove Clauses 43 and 46 from the Digital Economy Bill.