stopped Commercial Orphan Works Exploitation in the UK Digital Economy Bill Clause 43

  • 1. The essential nature of intellectual property and the differences in character, value chain and usage of different forms of cultural digital intellectual property should properly be recognised and defined

    The current UK copyright framework fails properly to recognise the essential nature of Intellectual Property in that it exists independently from the medium upon which it resides.

    For example, if I copy my digital image file from my memory stick to your memory stick I retain ownership of my IP in that digital image. But what does my IP physically consist of? Nothing more than an arrangement of electrical charges in the transistors within the memory sticks. If you then reformat your memory stick by overwriting it with other data my digital image file, and therefore my IP, will vanish from it without trace. But has your memory stick been physically changed, save for transient electrical charges? Where did my IP go? – your memory stick still holds charges in its transistors, only in a different configuration. Has it in itself lost or gained economic value? It holds no more or less electricity than it always did.

    My IP is and always was a "virtual" entity, just like text. It is thus demonstrated that IP has an independent life from that of its carrier medium or "platform". Do not forget that throughout all of this I retained an identical copy of my IP, my digital image file, on my memory stick. Anyone who uses a computer experiences this characteristic of IP every day, usually without considering it. Examples of the consequences of the "virtual" nature of IP include:

    • It is possible to own a physical object such as a painting, the IP of which (its image content) is in copyright and therefore owned by someone else,
    • It is possible to own a physical object such as a painting, the IP of which (its image content) is no longer in copyright and therefore not owned by anyone,
    • An instance of digital IP is not in itself a physically ownable object although its carrier medium is.
    The different digital media have different value chains, Further Uses and End Uses.

    There are at least six distinct photographic markets of which four are overwhelmingly Business-to-Business, one mixed, the last mostly Business-to-Consumer. They are:

    Contrast this with the licensing of music or films. Recorded music is largely a B2C business, as is the licensing to the public of films.

    Stop43 have explored these subjects in the following essays:

    The Photography Markets
    The Characteristics of Digital Media and Networking
    The Uses of Creative Intellectual Property in the Networked Era

    As currently drafted the UK Intellectual Property framework entirely fails to recognise these realities of the essential nature of intellectual property and the differences in character, value chain and usage of its different forms. Useful law will not result unless this failure is rectified. One size does not fit all.

  • 2. The creator's unwaivable, inalienable and automatically-asserted Moral Rights and Copyright should obtain for all photographs in all circumstances with no exceptions, unless the creator expressly, voluntarily and without contractual coercion requires anonymity

    Philosophers and economists from Adam Smith to Friedrich Hayek agree that a properly functioning market depends upon strong, enforceable property rights. Commercial photographers are individual and micro-business creators and rights-holders of Intellectual Property and support ourselves on income from photographic commissions and from the licensing of our Intellectual Property to others for commercial use. This is our job. Consequently we are entirely dependent upon our property rights in copyright law, and on our ability to enforce those rights in practice. Our property rights can only properly be enforced by the mandatory, automatic assertion of our Moral Rights, without exception, and in particular the right to be identified as the creator or author.

    Photographers who retain their copyright earn on average almost a third more than their colleagues who routinely give away their rights.

    Copyright exists not only to to protect creators' rights, but also to protect the rights of those depicted in photographs, of beneficiaries of contracts agreed in the course of making those photographs, and the rights of viewers, readers and consumers of cultural Intellectual Property. Effective copyright law in the digital era is contingent on the establishment in UK law of the inalienable Moral Rights of the creator as civil rights, as they are in all other EU countries except for Ireland and The Netherlands. They are:

    1. Attribution: the right to be identified as the creator of the work
    2. Disclosure: the right to decide when and where to publish the work
    3. Integrity: the right to preserve the integrity of the work.

    In its 2009 report entitled © the way ahead: A Strategy for Copyright in the Digital Age, SABIP stated:

    Moral rights can have economic significance, for instance, by protecting reputation; the moral rights of paternity and integrity can impact the ability for an author to influence the terms on which they sell or license their work.

    SABIP found that the authors it surveyed wanted three main things:

    1. more control over their work through the terms of assignment or license in contracts with rights holders;
    2. greater financial and legal support ... to address copyright infringement
    3. strengthen[ed] ... Moral Rights.
    And on Moral Rights in particular:

    41. Moral Rights can be covered by contract and they can be waived by written agreement. This can be problematic for authors. For example, The Featured Artists Coalition (FAC) have objected to the use of music by FAC artists in a compilation CD by a political party. Following the release of this compilation the artists complained of ‘… the inability to object to the use of music in situations that are contrary to their beliefs and morals’.

    42. In discussions with stakeholders, many less high profile authors were concerned about the issue of moral rights. In particular, that these moral rights can be waived and that the right of attribution requires assertion. This was deemed to indicate that the moral rights system in the UK needed strengthening and was fundamentally misaligned with moral rights in continental Europe.

  • 3. Fair Contract Law should be applied to Intellectual Property and an Intellectual Property Ombudsman be appointed to arbitrate in matters of contractual dispute, market distortion and market failure

    In at least four of the six distinct photographic markets that we have identified - Editorial, PR, Corporate and to an increasing extent Advertising - individual and micro-business photographers are vulnerable and daily subject to onerous take-it-or-leave-it rights-grabbing contracts incorporating draconian indemnity clauses imposed upon them by oligopsonistic buyers. There is no effective market counter to this behaviour.

    Moreover, competition law prevents micro-businesses from sharing license fee information even though we have little market power. It appears to take no account of the relative market positions and ability to distort the market of competitors and seems to treat six photographers sitting in a pub discussing business as if they were six CEOs of global media conglomerates sitting as a cartel in a hotel room fixing prices and dividing the market between them. This is patently absurd.

    Therefore alongside the requirement for the creator's unwaivable, inalienable and automatically-asserted Moral Rights and Copyright to obtain for all photographs in all circumstances with no exceptions, unless the creator expressly, voluntarily and without contractual coercion requires anonymity, it is necessary to remedy defects in contract and competition law by the application of fair contract law on the German model to include Intellectual Property, and to appoint an Intellectual Property Ombudsman to arbitrate in matters of contractual dispute, market distortion and market failure.

  • 4. A free-to-use, simple and readily available mechanism enabling photographers to find and readopt their "orphaned" works should be established

    It is argued by some that the chances of any orphan work being rediscovered and readopted by its rights-holder are slim. We disagree. Internet search engines make it possible to find the most unlikely things.

    Properly developed and implemented, image search software such as Artfinder, Picscout ImageIRC (1), (2) and TinEye makes it easy to propagate creators’ and rights holders’ information, reunite it with “orphaned” digital files, and thereby re-establish proper ownership and control of them. The Picscout ImageIRC represents an existing, functioning example of such a system. A machine-readable online metadata repository for all suitable kinds of cultural digital intellectual property, both orphan and non-orphan, that is free to submit to and use and which makes its contents and the digital objects to which it refers freely available to the public for its Cultural Use is required to provide an efficient platform for image search software to operate upon.

    We have defined such a platform and named it The National Cultural Archive.

    Photographers who retain copies of their work and upload them to The National Cultural Archive will be in a strong position to use the system's image search provisions to rediscover and readopt orphan copies of their work.

    The scheme requires digital facsimiles of works on traditional media to have all known metadata registered in National Cultural Archive before publication. Cultural assets are usually of little scholarly value without this information. The Cultural sector states that almost everything except current contact information for the revenant rights holder is known for a large proportion of the so-called orphan works in its custody. Therefore, a simple keyword search on any of that metadata, such as creator's name, will return appropriate search results and render the orphan discoverable. We can expect businesses and the general public enthusiastically to search for their lost property - the popularity and efficiency of genealogy and family history websites, along with other sites reliant upon user-generated content such as Wikipedia, Flickr, Google, etc. attest to this fact.

    Once readopted, the ex-orphan work's revenant rights-holder becomes free to enter into a profit-sharing license agreement with its custodian, to their mutual benefit. We are told that no-one wants orphan images to remain orphaned. In this way the problem solves itself.

    A practical system such as this is integral to Stop43's proposal for the effective implementation of our Recommendations and could be modelled on eBay's dispute resolution process.

  • 5. The deliberate creation of "orphan" photographs and their extra-Cultural use should be made illegal


    Few creators deliberately and knowingly "orphan" their work. This includes the creators of so-called user-generated amateur digital images who assume that their pictures are “theirs” and labour under the misapprehension that their pictures uploaded to their Facebook accounts are somehow “private”, “unpublished”, will only be seen by their “friends”, are not visible to the rest of the Internet, will not be stolen for commercial gain by news organisations and advertisers, and that they will therefore not suffer the invasions of privacy such theft entails.

    When made aware of the potential consequences of their actions such amateurs frequently tend towards indignant possessiveness of their IP. Hence, the mass support provided to Stop43 by both professional and amateur photographers during our successful campaign to remove Clause 43 from the Digital Economy Bill.

    Most so-called orphan photographs are the result of:

    • the loss of current contact details for the revenant rights-holder;
    • the creation of digital facsimiles without the knowledge and permission of the creator and/or rights holder (such as grabbing images from Facebook and Flickr), and
    • the (usually deliberate) stripping of metadata from digital files. As a direct consequence of the deliberate design of the automated software that drives their websites, digital photographs are anonymised daily in their hundreds by the BBC and in their thousands by Facebook, to name but two.
    Stop43 maintains that this deliberate design renders the BBC in breach of the Copyright, Designs and Patents Act 1988 Section 296ZG because it knowingly, deliberately and systematically strips all metadata from digital images file uploaded to its websites.

    According to the European Federation of Journalists in their September 2010 Newsletter, a digitalisation (sic) project in the UK found that 90% of the estimated 17 million photographs in UK museums are considered to be orphan works.

    The Newsletter also states that:

    • a high number of orphan works are from the newspaper, photography, and movie industries;
    • a report on the "Assessment of the orphan works issue and costs for rights clearance" published by DG Information Society and Media of the European Commission shows that most cultural institutions in Europe are unwilling to pay for the use of orphan works;
    • While the Commission said that clearing rights of all orphan works will be too costly and slow, the EFJ believes that authors would be further exploited if procedures for rights clearance were omitted.

    CREATORS DID NOT DELIBERATELY CAUSE THE ORPHAN WORKS PROBLEM AND ITS SOLUTION DOES NOT LIE IN STRIPPING CREATORS OF THEIR RIGHTS, no matter how convenient this would be for those who wish to treat the in-copyright IP of others as raw material for them to mine, process and exploit at the least possible cost to themselves.

    If someone parked their car outside your house and its number plates subsequently went missing, and you came out and saw that car, would you immediately assume that its lack of number plates gave you the right to claim ownership of it, re-register it to yourself and drive it off? No. And yet that is in effect what advocates of the commercial use of orphan works propose. It is also what media organisations, aggregators, marketers, agencies, and clients do to our IP daily. Most of them deliberately remove the number plates themselves.

    No proscription against deliberate orphaning is of any practical use if it cannot be policed and enforced, as is the case at present with the Copyright, Designs and Patents Act 1988 Section 296ZG. Digital infringement must be policed in the digital domain, and a properly-designed system must be implemented by statute to do it.


    The argument has been made that orphan works licensing schemes should cover all uses, commercial, non-commercial and cultural, because limiting the uses 'weakens the argument that there should be a licensing scheme: if it's non-commercial only, why not "just" introduce an exception to copyright and drop the requirement for diligent search? Making [such schemes] apply to all uses also has the advantage of covering all bases, elegantly.'

    This argument is a non-sequitur. Different digital media have different value chains, Further Uses and End Uses. Not all bases are the same shape. Writers have square holes; photographers have round ones. And what happens when you try to shove a square peg into a round hole? The result cannot generally be described as "elegant".

    There is no reason in principle why an orphan work should not be readopted by its owner. An exception to copyright would preclude this. A revokable statutory license such as we propose would enable re-adoption, allowing defined use of orphan works while they remain orphaned. This concept is crucially different to that of Creative Commons licenses which permanently grant rights and cannot be revoked.

    Any orphan works licensing scheme that includes photographs and illustrations must be strictly limited to non-commercial "Cultural Use"
    . The British Copyright Council has issued a proposal on Orphan Works that includes a list of five caveats as a prerequisite to any such scheme. Stop43 is signatory to this proposal.

    A comment from commercial photographer Paul Ellis makes clear the reasoning behind it:

    1. MONEY

    • I create my Intellectual Property in order to earn licensing revenue from it so that I can support myself and my family. This is my job. It is my duty to maximise the economic value of my work to me and my return on my investment in creating it, as it is for any business that creates things. Therefore I don’t want other people making money out of using my property if I don’t, unless I have specifically donated it to them for that purpose.
    • If I’m not making money from the use of my property then I don’t want its user getting advertising revenue from it, unless I have specifically donated it to them for that purpose. That blog might be amateur but those Google Ads are making the blogger some money and Google rather more.
    • The use might be “educational” but the user is a profitable business. Oh no you don’t.
    2. CONTROL

    • Not all uses of my property involve financial gain. I don’t want my pictures used on an extremist political website, or the website of a charity I don’t agree with, or to promote religious ideas I abhor. I fail to see how any of these would fall within the scope of the “derogatory treatment” Moral Right. I wouldn’t give any of these people my time or money; why should be obliged to donate to them the use of my property?
    • I would like the general public to see my work and, I hope, culture themselves as a result.

    • I don’t want my business undercut and trashed by a new, parallel commercial market in so-called “orphan works”. Current law has already created a situation that has resulted in a positive incentive to use my work without paying me, as the Banier Judgement makes plain.
  • 6. A low-cost, simple and straightforward system should be established by statute by which claims by rights holders against rights infringers can be made and damages awarded in sums significantly greater than a normal licence fee would have been, to make the pursuit of claims for infringements worthwhile and deter infringers

    For the most common infringement value of £50 - £350 litigation is rarely cost-effective. It becomes more so as the value of the infringement increases, but given that damages awarded do not exceed the value of the license for that infringing use, the rights-holder always ends up suffering a net loss as a result of the expense and disruption of pursuing the infringement.

    This represents a significant burden on our businesses, loss of revenue, loss of business confidence and consequent reduction in overall economic activity, growth and HM Government tax receipts - the time spent gaining redress would have been better spent on creating and licensing new work.

    When it was possible to pursue claims in the Small Claims Court many photographers did so when they judged it to be potentially worth the cost, effort and disruption to do so. The transfer of copyright infringement cases to the Patents County Court has had a chilling effect on the pursuit of infringements by most photographers. We usually cannot afford the costs, time and potential liabilities. For us, the net effect of this transfer has been negative.

    For this reason, it is of great importance to us that Lord Justice Sir Rupert Jackson's recommendation for a 'small claims' procedure for intellectual property disputes valued at less than £5,000, based partly on the results of a survey undertaken by SABIP and published after SABIP's dissolution, be implemented as soon as possible. The National Union of Journalists have made a similar recommendation which they included in their evidence to the Gowers Review.

    This system should be straightforward and available online as the Small Claims system is now.

  • 7. The entire package of legislative changes should be designed to encourage growth in the trade of economic Intellectual Property rights at the creator/first rights holder level

    There are those who assert that all creative and artistic works should be “free”, that in this era of digital networking it is impossible to prevent their “freedom” and that the American "Fair Use" doctrine should be imported to the UK. We note that very few of those advocating the "liberalisation" of IP have ever had to rely for their income on the IP they create; overwhelmingly they are students, employees or tenured academics who create IP in the course of their studies or employment, or as a hobby. It is therefore understandable that most freelance and micro-business creators give the ideas and proposals of such people little credence.

    If law as it applies to Intellectual Property is to be changed
    to make this growth engine more effective, then given the UK's current and foreseeable economic circumstances it is obvious that any such changes should have two primary aims:

    1. to stimulate activity in Intellectual Property markets and thereby promote economic growth, and
    2. encourage this economic growth to take a form that maximises HM Government's tax receipts as a result of it.
    There are two kinds of economic growth that could result from changes in the copyright IP framework:

    1. Growth of “innovative” Internet companies in the hope that one of them might become a Google-class corporation capable of moving its money and tax liabilities around globally such that it pays 2.4% corporation tax in the UK (1), (2), (3):
    2. Growth at the basic creator level, which in the photographic sector means individuals and micro-businesses, who pay corporation tax at between 21% and 28% – an order of magnitude higher than the global corporation mentioned above.
    Our figures prove that a functioning cottage industry in which most of the value of its product is generated by the original creator is worth more to HMRC in % tax take of that industry’s market value than that same industry corporatised. Our model, based on reality, can prove that corporatisation which doubles the value of the overall market can result in a gross reduction of the corporation tax take by 25%.

    Given the present and forseeable state of the UK’s public finances and the fact that our national debt must be paid back from the tax take, it would be a dereliction of duty bordering on treason not to prefer growth in the form that maximises the tax take.

    This logic implies:

    1. the strengthening of property rights of creators;
    2. strengthening sanctions against infringers; and
    3. reducing the cost and complexity of gaining such sanctions so that pursuit of infringement becomes worthwhile for the small creator and not the loss-making process it is now. Lord Justice Sir Rupert Jackson appears to be of a similar opinion on this point. To date, his suggested ‘small claims’ procedures have not been implemented.
    "According to the Government's own analysis, the creative industries account for around 8% of UK GDP, and probably a rather larger proportion of total employment. That's roughly the same size as financial services, and a good sight less dangerous to the wider economy these industries seem to be too. Many would put the figures much higher.'

    ...the "technology pioneers" just will not let go. It's no doubt a cheap shot to remind readers that Steve Hilton, Mr Cameron's strategy director, is married to Google's European head of communications, but there you are, I've done it anyway. I'm sure it had nothing to do with the prime minister's conversion to the cause of Google friendly public policy.

    Even so, Mr Cameron... dreams of making Shoreditch the next Silicon Valley. Clustered around the unlikely location of a busy North London intersection – which some already refer to as Silicon Roundabout – there are indeed a number of quite promising little technology start-ups. Many of them complain that antiquated copyright law gets in their way. But in a sense, so it should.

    You don't kiss goodbye to a highly successful, employment sustaining content sector on the off chance that one of these tiddlers, living like parasites on the pig's belly of supposedly free content, might one day become the next Google". Jeremy Warner in The Daily Telegraph.

    In conjunction with the legislative changes referred to here, Stop43 believes that our innovative, self-funding National Cultural Archive scheme's features of free cultural access, rights enforcement, easy access to the licensing process and removal of "friction" from that process will be of very significant economic benefit and that it can be realised today at relatively low cost using existing, proven software, digital infrastructure and Internet-based structural and business models, and thereby achieve the twin aims of increased growth and maximised tax receipts.