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

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 Floating Voter

Some people just can’t make up their minds. At first, this girl seems to be a confirmed DUP voter:

But later, she appears to change her mind and support the Conservatives & Unionists instead:

That’s assuming, however, that she is actually eligible to vote in the forthcoming UK General Election because she might be Californian, or even French. Such are the dangers inherent in using microstock photographs.

UPDATE: The photographs used in these posters were shot by Peter Chen. Although they are model-released, their use in political advertising is in breach of iStockPhoto’s terms and conditions, which state:

3. Permitted Standard License Uses

(a) You may only use the Content for those advertising, promotional and other specified purposes which are Permitted Uses (as defined below).

4. Standard License Prohibitions

(a) Prohibited Uses. You may not do anything with the Content that is not expressly permitted in the preceding section or permitted by an Extended License. For greater certainty, the following are “Prohibited Uses” and you may not:

7. use or display any Content that features a model or person in a manner (a) that would lead a reasonable person to think that such person uses or personally endorses any business, product, service, cause, association or other endeavour”

Sadly, we see here yet more abuse of copyright and misrepresentation of people in photographs, to accompany these examples:

The background image in all of the above posters is owned by Kudos Film & Television, who have stated to us that they have not licensed it to anyone for political advertising purposes.

Proposals for “orphan works licensing” in Clause 43 of the Digital Economy Bill, which in its dying days the last Government declared its intention to revive, would have allowed any Political Party to use almost anyone’s picture for this political avertising purpose, whether or not the individual depicted agrees with that Party’s policies, and thereby misrepresent them.

"Ashes to Ashes" election posters - the guilty parties

Stop43 has learned that at no point were Kudos Film & Television, copyright holders of the Ashes to Ashes picture used in political advertising, approached by either the Labour or Conservative parties for permission to use the picture in this way.

Kudos’ PR company Premier Public Relations has said to us:

Neither Kudos nor BBC were approached by either party to seek permission to use the image or quotes from Ashes to Ashes for their posters or indeed the use of any images or quotes to be used in the sale of merchandise. Kudos own the copyright to the image and dialogue from Ashes to Ashes and as both Kudos and the BBC are non-partisan and do not endorse any political party, Kudos lawyers have written to the relevant retailers of this merchandise to request they cease the use of the image and lines from the drama thereof.”

And so, as we believed when we broke the story, both Labour and Conservative Parties stand in breach of Kudos’ copyright. We would also have thought that the parties’ advertising agencies Saatchi & Saatchi (Labour) and M&C Saatchi (Conservative), who know about such things as copyright infringement, exclusive rights and licenses to use, might have laid a restraining hand on excited Internet-generation political activists and their ill-considered mashups.

Jeremy Nicholl provides the full background.

They've done it again

It isn’t the first, and now that the copyright-ignorant “everything on the Net’s free - I can just use it in mashups” Internet Generation is active in political campaigning, it won’t be the last. The Labour Party has breached another photographer’s copyright. They have used, unlicensed, a heavily retouched copy of the iconic David Cameron image. Labour’s original poster is here.

The Tories have an exclusive Worldwide licence in Perpetuity to use this image of David Cameron, but the copyright remains the photographer’s. How do we know? The photographer who shot this famous “airbrushed” image is a friend of ours. (In the original photograph Cameron’s face isn’t actually retouched at all - he happens to look like that when well lit by a top-end photographer).

It is inconceivable that the Tories would have licenced the image to the Labour Party for use in a party political poster.

This poster is a de facto breach of copyright under the Copyright, Designs and Patents Act 1988, perpetrated by the same Government that on Tuesday April 6th wishes to grant itself powers enabling legally illiterate, ill-considered changes to that very Act.

Clause 43 of The Digital Economy Bill originated at the Intellectual Property Office, headed by The Rt Hon David Lammy MP, Minister of State for Higher Education and Intellectual Property, who has a Master’s Degree in Law from Harvard University.

"Ashes to Ashes" election campaign posters probably breach copyright. The proof? A mouse mat

The Labour Party yesterday released a poster based on the character Gene Hunt from the BBC series Ashes to Ashes. The Times Online says:

“The poster, designed by a member of the public, shows the Conservative leader’s head super-imposed onto the body of the popular character [Gene Hunt] from BBCs Ashes to Ashes. He is leaning on the bonnet of Hunt's trademark Audi Quattro next to the slogan, “Don’t let him take Britain back to the 1980s.” Hunt, played by Philip Glenister, is famous for his no-nonsense, politically incorrect style.”

The Conservative Party immediately issued a derivative poster with a different shot of David Cameron’s face superimposed, and the slogan replaced with “Fire up the Quattro. It’s time for change”.

Today, Sky News reports that Philip Glenister is not happy with the way the ads have been used.

According to the Telegraph, the idea for this image was only conceived of last week:

“Labour’s Ashes to Ashes poster was created by Jacob Quagliozzi, 24, a Labour supporter from St Albans, who entered a competition organised by the party’s advertising agency, Saatchi & Saatchi, which invited supporters to meet a brief posted online last weekend.”

The red 1980’s Audi Quattro featured in the image is extremely rare and has been positively identified as the one used in the show by a specialist car photographer (we’re photographers, remember: we know these things). Startled by the remarkably short time in which to find and photograph for the campaign the very vehicle used in the show (we’re photographers, remember: we know these things), we suspected that a promotional shot for the series had been used instead.

We were right. The image is all over the Internet. We have even found the original picture for sale on eBay being used as a mouse mat image. Comparison of the angle of shot, reflections in the car’s bonnet, “Hunt’s” stance, creases in clothing, etc. confirm our suspicion.

Ashes to Ashes is written by Monastic Productions, produced by Kudos Film & Television and distributed by BBC Worldwide. A publicity still from the series is posted here, credited “(c) Kudos Film & Television/Monastic Productions - BBC” - thereby stating that all three companies are rights holders in this image.

We would like to know:

1. Does the Labour Party have a Licence to Use this image for this purpose? This is a publicity (PR) picture - a PR Licence does not normally permit use for party political advertising. We won't know unless and until someone produces a Licence to Use, and whether that Licence includes advertising. If not, they are in breach of copyright.

2. If they do have such a Licence, from whom did they obtain it? Monastic Productions, Kudos Film & Television or BBC Worldwide?

3. Why was it granted? On the evidence of this picture, the BBC almost certainly holds rights in all publicity images from the series. The BBC is prohibited by its charter from engaging in partisan political activity.

3. Has the Conservative Party also licensed the image from the rights holders for this purpose? Again we won't know unless and until someone produces a Licence to Use, and whether that Licence includes advertising. If not, they are in breach of copyright.

4. If they have licensed it, how, on a Bank Holiday? Of the three probable rights holders in the image, only the BBC is likely to have licensing staff working over the Easter weekend.

5. Does Philip Glenister’s contract allow the use of his image and performance for party political purposes without his prior permission?

6. Ashes to Ashes is broadcast by the BBC, which appears to hold rights in publicity images drawn from it. Why has the BBC allowed this image to be appropriated for party political purposes in this way? Furthermore, “Quattro” is a Volkswagen Registered Trade Mark. Has the Conservative Party obtained Volkswagen’s permission to use it?

Monastic Productions and Kudos Film & Television can also be held to account - did BBC Worldwide really grant them rights to licence stills for political advertising? Or is the series entirely the production companies’ Intellectual Property - did they merely grant BBC Worldwide distribution rights? Either way, the production companies have shown very poor judgement and arguably brought the BBC into disrepute, raising questions about the BBC's handling of external productions and associated Intellectual Property.

Similar questions can be asked over use of the show’s footage in a YouTube video.

BBC Worldwide is known to harbour ambitions of becoming a licensing body for Orphan Works and collecting society for Extended Collective Licensing.

People wonder why photographers make such a noise about breach of copyright, Orphan Works and Extended Collective Licensing. This is exactly the kind of “misrepresentation” that these schemes will promote.

If Labour and Conservative parties can't even understand normal licensing procedure themselves, then how can they be trusted to legislate changes to it?

BBC posts story perfectly illustrating misrepresentation

Headlined Artist's impression causes copyright blunder, the story describes how a design company breached the copyright of dozens of photographers by incorporating elements of their copyright work, without permission, into a visualisation of a planned city-centre development.

The computer-generated artistic impression was commissioned by Stoke-on-Trent City Council “...for the East West Centre team to give residents an idea of what the new leisure and retail complex will look like", and shows the likes of Jude Law and Barack Obama shopping, among many other “celebrities”.

Whereas none of these prominent people might themselves object to shopping at the new Centre, they might well have good reasons not to publicly promote it. In other words, this picture is likely to
misrepresent their views

A welcome to the future to all of them, if they fail to help prevent Clause 43 of the Digital Economy Bill from becoming law.

Scrutiny Unit not taking written evidence before washup

From the Scrutiny Unit

Digital Economy Bill Update

The Digital Economy Bill will receive its second reading in the House of Commons on 6th April 2010. Unfortunately, due to the forthcoming election there is insufficient time for this Bill to go to a Public Bill committee, and so we will NOT be taking written evidence.

You may want to raise your concerns about the Bill with your MP and ask them to take the issues forward in the debate on 6th April.

You may also want to contact the All Parliamentary Group on Photography who may be in attendance at this debate.

Finally, you could try contacting any other All Party Group which may have an interest in this Bill. The full list of these groups can be accessed via this link (subject topics are listed after the country headings).

Digital Economy Bill will not undergo Committee stage before washup

The Digital Economy Bill will not undergo scrutiny by the Public Bill Committee before its simultaneous Second Reading and vote into law in the washup that precedes the dissolution of Parliament prior to the General Election.

According to the Scrutiny Unit, Public Bill Committee planning anticipate that Parliament will be dissolved close to the Bill’s Second Reading and that therefore it will not enter Committee stage, as there would be no committee available to convene.

The normal schedule would be Second Reading -> 1 week after, Committee formed -> 3-4 weeks of line by line examination. But that's not what will happen here. Committee planning are therefore not accepting written submissions.

No wonder John Whittingdale MP has said what he has about the constitutional legitimacy of this procedure.

Digital Economy Bill Second Reading and probable wash-up on 6 April

The Digital Economy Bill was presented to the Commons on 16 March 2010. This is known as First Reading and there was no debate on the Bill at this stage. This Bill will be on the Order Paper for a Second Reading debate on 6 April 2010.

Still no news on when the Bill will enter the Committee stage, or for how long it will last.

John Whittingdale MP, Culture Media and Sport Select Committee Chairman, objects to the DEB's rush through Parliament

The BBC reports that

“At least one influential voice - Culture Media and Sport Select Committee Chairman John Whittingdale - is saying it would be a constitutional outrage to force such provisions through without proper scrutiny by MPs, on the strength of a few hours debate at Second Reading. Lawmaking should not be so perfunctory, he argues.”

Quite so.

Small Businesses already planning to "orphan" Getty Images' pictures

Posted yesterday on the Federation of Small Businessemail forum:

"I have just been reading elements of the New Digital Economy Bill and especially the aspect of Orphan Works. It appears to read as follows: 'will allow the commercial use of any photograph whose author cannot be identified through a suitably diligent search'. It also appears to want to take licensing and pricing away from copyright holders and place them with a central licensing body.

If this is correct and if you had purchased any image in good faith which did not have identification info contained within it then is it fair to assume that Getty and others could not come after people as they have been demanding thousands.

If so it’s great news for the future and should avoid this current debacle."

Getty Images, a $2 billion global commercial picture and media library, are famous for enforcing their IP rights and suing infringers. An out-of-court settlement with Getty Images for unauthorised use of pictures on their website recently cost a small Scottish transport company £20,000. The images could have been licensed for less than £1,000. Like the general public, small business owners tend not to understand copyright and assume that photos they find on the Internet are “free” and that they “own” photographs that they have commissioned, as if they’d simply bought a spade.

This is the clearest indication yet of how the Public and business in general will view photography if the provisions within Clause 43 become law. It will destroy the market for photography, destroy professional photographers, and seriously damage at least one $2 billion corporation. And this from the Department of Business, Innovation and Skills. What an innovation.

"Public Affairs" lobbying companies "amend the Digital Economy Bill"

Channel 4 News has broadcast an item exploring the burgeoning world of Parliamentary lobbying companies (“public affairs” companies) and their influence, especially in “weak” areas such as the House of Lords. Starting at around 2 minutes 34 seconds into the broadcast, the item discusses lobbyists’ influence on the Digital Economy Bill:

3.07: Gary Gibbon for Channel 4 News: “Get a Bill where there are enormous commercial interests at stake and you’ll usually find lobbyists getting their way. Some MPs think the Digital Economy Bill, just completing its way through Parliament at the moment, is a very good example.”

3:20: John Grogan MP (Labour): “For about the last six months there’s been lobbying companies crawling all over the House of Lords. They’ve been handing out Amendments to Peers, some of which have now got into the Bill.”

It may be fruitful to explore a conflation of the lobbying row, the excommunication of Hoon, Hewitt and Byers, and the indecent haste in which the Digital Economy Bill, a supposedly non-political Bill that might be expected to survive a change of Government, is being rushed through in a barely-constitutional way, if that. Parts of the Bill remain highly contentious; not only the provisions for terminating Internet connections but also the vague powers to implement Orphan Works and Extended Collective Licensing schemes in secondary legislation and to empower Lord Mandelson (or his successor) to change copyright law at will.

For photographers, these powers (in Clause 43) have the paw-prints of Big Media all over them. Big Media have Big Pockets and can afford Big Lobbying Fees.

“One of the problems that we have had is insufficient protection for intellectual property rights” - Barack Obama

The White House blog written by Victoria Espinel, the U.S. Intellectual Property Enforcement Coordinator, makes interesting reading:

My job is to help protect the ideas and creativity of the American public. One of the reasons that I care about this is because I believe it is enormously important that the United States remain a global leader in these forms of innovation – and part of how we do that is by appropriately protecting our intellectual property.

We at couldn’t agree more. We wish to protect all intellectual property - both individually and corporately-owned. Overall, the Digital Economy Bill makes great efforts to protect corporately-owned intellectual property. What a pity is does so at the expense of hours, and in such a conclusive fashion.

Ms. Espinel’s blog concerns itself mostly with risks to the public from counterfeit goods. We’re concerned by risks to users of “orphan works” of litigation from their US owners. Amongst other things.

The Lobbying Row

The Guardian digs into the lobbying row that has resulted in ex-Cabinet ministers Stephen Byers, Geoff Hoon and Patricia Hewitt being suspended from the Parliamentary Labour Party.

"Stephen Byers said he didn't lobby Lord Adonis [the transport secretary]. Lord Adonis said he did. Stephen Byers said he called Peter Mandelson [the business secretary] and got regulations changed. Lord Mandelson said he did not. That's why we need a proper inquiry into all this. We do know that the policies referred to did actually change, so we need to see the minutes of meetings, the emails, the telephone logs, those things, to rapidly establish what did actually happen." - David Cameron

One can only speculate why it might be that the most contentious provisions in the Digital Economy Bill seem to be of such benefit to big business, at the expense of private individuals and the general public.

The Extended Collective Licensing scam

Copyright Action dissects the proposals for Extended Collective Licensing in Clause 43, assesses their likely effects on the market, and unearths the big winners from these proposals. As usual, you don’t have to dig far. Unsurprisingly, they are mostly the same big winners from other controversial parts of the Digital Economy Bill.

Photographer Andrew Wiard, who has been deeply involved in the “consultation” process around the Digital Britain report, tells us:

Clause 43 reflects very well the requirements of the publishing lobby. We know this because the Intellectual Property Office have repeatedly told us that the publishing lobby
• opposes moral rights and metadata preservation, because it's "onerous"
• wants mechanisms to legitimise use of the millions of works they have managed to anonymise
• wants Extended Collective Licensing because having to negotiate with individual creators is "cumbersome" (and besides, gives us too much say in the price they'd like to pay).

Hence we aren't likely to get much exposure or support from newspapers and magazines.

Digital Economy Bill: what you need to know

The Guardian has a useful summary of the entire Bill. Of orphan works, the article says: "Orphan works" are copyrighted works whose owner is unknown; this would create a means to license them. The extension of copyright/performers' rights proved controversial in the Lords. Status: Orphan works may survive the wash-up; copyright extension is less clear.

Luminaries object in open letter

The Guardian reports on an open letter from public figures objecting to the undemocratic way in which controversial measures in the Digital Economy Bill are to be rushed through Parliament before the General Election

UK Music chief Feargal Sharkey slates the Extended Collective Licensing proposals

• In the Telegraph, Feargal Sharkey is critical of the Digital Economy Bill’s proposals for extended collective licensing, which he says would permit authorised organisations to licence creative works without the creator’s permission.
He said: “The only way that you can respond to that as a creator is by opting out, assuming you knew that process was going on in the first place. We just think it’s incredibly broadly, incredibly badly worded and you cannot begin to believe how open-ended it is.”