Until now, if someone found one of your photographs and wanted to use it commercially, they couldn't without first asking you. Clause 43 would have changed all that by allowing the use of “Orphan Works” - photographs, illustrations and other artworks whose owners cannot be found.
Clause 43 said that if someone found your photograph, wanted to use it and decided that they couldn’t trace you, they could do whatever they liked with it after paying an arbitrary fee to a UK Government-appointed “licensing body”. You’d never have known unless you happened to find it being used in this way, in which case you should have been able to claim some money.
There was more. Clause 43 also introduced “Extended Collective Licensing”.
This meant that if someone found your photograph and could trace you, they still didn’t have to contact you for permission to use it. They could have gone to a UK Government-appointed “collecting society” and asked them instead. They would have paid an arbitrary fee and been able to do whatever they liked with the photograph. Your photograph. Again, without asking you first or paying what you would have charged.
At, least, so we thought - because the Bill left much of this undefined, unclear and to be dealt with by secondary legislation based on “consultation” that the Government can ignore. Can you imagine what this would mean if we were talking about cars rather than photographs?
PRESSURE FROM PHOTOGRAPHERS AND OTHERS INSPIRED BY THE STOP43 CAMPAIGN RESULTED IN THE REMOVAL OF CLAUSE 43 FROM THE BILL.
What’s Yours Is Ours
WHAT DO WE WANT INSTEAD?
• We regard enforceable moral rights as a necessary and rational counter to any weakening of copyright holders' exclusive rights.
• We cannot accept blanket commercial licensing of orphan works. It sets up a free-input commercial supply channel that directly competes with and undermines our business.
• We can accept some form of licensing that is limited to non-profit use within the non-commercial cultural sector. Precise drafting will be required to prevent use in competition with the commercial exploitation of the work.
• We need an informal, low cost, quick, online method of enforcing rights and obtaining compensation for breaches. To deter infringement it is essential that the penalty for a breach is significantly greater than the lawful cost would have been, even if not all of the money charged to an infringer gets paid to the rights owner.