UK Close To Approving Orphan Works

- - copyright

Several readers alerted me to The Digital Economy Bill (here) in the UK which contains Orphan Works language that “will allow the commercial use of any photograph whose author cannot be identified through a suitably diligent search.”

Photographer Simon Crofts has a post about it (here), where he says:

“The Government’s idea is to take control of licensing and pricing of orphan works away from copyright holders and give it instead to one or more central licensing bodies.”

Hopefully it can be stopped, but judging how things have been going for photographers over there it doesn’t appear the government cares much for photographers.

UPDATE: From a reader.
http://www.copyrightaction.com/forum/uk-gov-nationalises-orphans-and-bans-non-consensual-photography-in-public?page=1

I know it’s a bit of a long read but the salient points are that in the UK new law:

1) Enacts orphan works without any definition of a. what constitutes an orphan work and b. what a reasonable owner search is
2) Makes it a crime to photograph in public if *anyone* who appears in the image objects to their image being taken!

WOW. WTF UK.

There Are 24 Comments On This Article.

  1. That second one, about making it a crime to photograph in public if people object, would pretty much kill photojournalism in the UK.

    I can see it now, the hapless newspaper photographer on a feature hunt: “Excuse me sir, would you mind continuing to do that interesting thing you are doing so I can photograph you in a candid way, with your permission, of course?”

  2. The only silver lining is this terrible legislation is that
    point #2 should do away with invasive paparazzi behavior.

    The more ominous point to me is as follows:

    “So Flickr, Google Images, personal websites, all of it will become commercial publishers’ photolibrary”

    In essence they seem to suggest that British Law will have weight
    on the internet not just to British citizens on British soil.

  3. I was reading about this a couple days ago. No offense to those who love the UK and make it their home but it seems like such an arrogantly run government. To me it is shame since they are really removing an art form from their country.
    What are they going to do about tourists, tell them oh we’re sorry but you can’t take pictures because you might capture someone in it that didn’t give you permission to photograph them and it also might violate our anti terrorism policies.
    I would ask what the people think but it really doesn’t matter to the lords or commons anyway, based on history they create without caring. Most of the new laws are because of terrorism which is exactly what terrorist want, people to react and live in fear of another attack.

    I feel for the photographer over there.

    • @Ed Hamlin,
      I live in the UK and am British but I am NOT offended by your comments. I am offended by this ‘arrogantly run government’ and this damaging legislation.

  4. I’m the author of the CopyrightAction article for EPUK, watching referers and noticing the US wake up to this issue.

    It’s a long and complicated read I know, but the Digital Economy Bill – just like OWA2008 before it, has the capacity to affect photographers around the world. It stands to reason that the national jurisidiction of an image of unknown ownership is also unknowable. The web is global and there are no barriers to propagation. The UK Gov’t may very well end up licensing work that is copyright of someone ..anywhere. It doesn’t even seem to have thought of the problem, because it – like most governments – only really listens to major lobbies like the voting public(sometimes) and business interests. We have tried to tell them, but why listen to the saps who actually make the stuff the opposing lobbies are fighting over?

    Like OWA2008, DEB fractures WTO TRIPS requirements to safeguard the rights of overseas creators. I will be writing more about this weekend.

    So I can hardly wait to see what happens when UKGov Orphan Image Library PLC licenses an OW that turns out to be registered with USCO. I would hope US photographers will alert their representative organisations to having your copyright defenestrated by UK.You know all the arguments from the last 2 times OW were kicked into the dust. But I am sure it will be back, especially if UK gets away with this stunt. EC too has OW intentions, although probably not for a year or two.

    Domestically, our best hope is probably the vulnerability of MP’s, who are facing election in 2 months. Right now they are a popular as a zit with herpes (war fibs, nannyism, economy stuffed, expense fiddling, plus inability to ever tell the truth). People were already angry before this blew up. Photographers are actually a very large community nowadays, and tackling MP’s directly has started to look like a peasants revolt. I know it’s having an effect at the highest levels of government because they’ve had to turn on the spin machine already. I’ll be writing about that too.

    The other issue, the convergence of privacy and data protection law, is much more just a local idiocy. Nobody is actually going to say “photography in public places is banned”. They will say “it is not banned in any way”. Yet they will create a culture that feels it is improper, wrong, an invasion of privacy, with just a background threat of law.

    This sort of deniable bureaucratic evolution of unfreedom is just how it happens over here, and you can never hold anyone responsible or point to when it happened. Nobody did it, it just worked out to be the conclusion, rational and reasonable and for the public good. Only it isn’t. We don’t have a Bill of Rights, you see. What’s left when stuff is taken away is all that’s left. There’s less remaining by the year.

    The capacity has been in DP law for years, but nobody has really bothered about the restriction it may mean for photography. So far, there is no policy fixed in any official publication, but there is private correspondence that really does pose serious limitations for a lot of street and journalistic photography. The ICO isn’t really thinking further than paparazzi, but the scope for collateral damage is much wider. How the hell they think that it can be limited to pro’s is something I have written and asked them to clarify, along with everything else, in a publishable document. I’ve had no reply as yet, despite asking on behalf of EPUK’s 1000 pro members. See the previous par.

    I don’t think data/privacy crap will (much) mean arrests or court cases, but a shift in public perception of their rights in public places as people come to believe that they have the right of privacy in the street. If they understand that it only restrains pro’s, in practice that will soon mean “anyone who has a big camera”. That will cause confrontations and difficulty. It’s already fairly common for people to object to and interfere with innocuous photography, to demand “why are you taking photographs?”

    So far, being nice is often an antidote, but not always. Private security guards are often a fabulous confection of pig-ignorant imagined rights, and Rottweiler aggression. Police too are rather fond of inventing law to suit themselves, eg ‘it’s against my human rights’. Soon it will be. Handing such people full metal jacket legal ammo is not going to play out well, and will chill whole genres.

    Anyhow, if you’re unfortunate enough to visit Airstrip One, bring a Hawiian shirt and a point&shoot and you’ll probably be fine. The 300 CCTV cameras per sq mile will look after you. Just don’t for God’s sake photograph anyone.

    • @Tony Sleep, Eloquently put and right on the button, particularly your point about gradually reducing freedoms in the UK. I’ve been at the wrong end of mob justice a couple of times over the past few years and it’s this that threatens photographers more than correct legal application of a limited law. There are a lot of angry people out there, and a lot of interfering busybodies, this rule will further embolden them.

  5. I have three concerns being driven by the UK Digital Economy Bill.and I did read the Bill.

    First and foremost is that it effectively gives persons under UK jurisdiction the right to treat orphaned images published world wide the same as those published only in the UK as long as the “diligent search” is made in the country of origin of the work. So a Brit can use an orphan work from the US even though there is (at least not yet) no such thing as an Orphan Work in the US.

    Second and arising from the first is that the great outcries from professional photographer trade associations against the attempt to enact Orphan Works legislation in the US seem to have not been duplicated in terms of trying to squelch the UK legislation. The UK Bill effectively creates Orphan Works in the US for UK entities to access thus circumventing the the rights of US copyright owners. Why ASMP, APA, PPA have not weighed in escapes me, except that I think they are asleep at the wheel these days and more content educating photographers about workflow that tying to protect the work that is flowing. If Orphan Works is enacted in the UK, the proponents of ORphan Works in the US including the Copyright Office will point to the UK Law as a milestone that compels the US to get onboard with similar legislation to promote an evenness in treatment under international copyright law. I can take care of my own workflow, but I cannot help defeat the UK Bill. ASMP could.

    Third is the failure of the Bill to create a registry of copyright owners, which is critical to the process of locating some owner s of Orphan Works. I published work as long as forty years ago with my name on it. If someone wants to find me, a Google search will do that because I have a Website, four published books still in print, and other activities that get into Google searches. What if I had retired in obscurity in 2002 when I left my post as executive director of ASMP? Nine years later I would most likely be unfindable. But, if there was a registry of copyright owners, I could enroll in it and then be found. I spent some energy years back trying to get the US Copyright Office to register copyright owners in addition to copyrighted works. The effort failed.

    As for needing to get permission to photograph people in public, I am not concerned based upon my reading of the Bill. That fear is one from deduction based upon a single civil legal case in the UK and then multiplied by the fear that a government agency will use that case to create a right of privacy in public. I think such fear is unwarranted.

    If you are an ASMP, APA, or PPA member, get in touch and ask them: “What have you done about the UK’s Digital Economy Bill, and why not?”

  6. @Richard Weisgrau
    Yes, I have to agree UK photographer organisations have not served us well. Explaining why would take a small libellous book, but one fundamental difference is the weakness of copyright protection here, which is little different than the US situation for unregistered works. Infringement with relative impunity, the absence of statutory or even punitive damages, means resigned impotence by photographers, and less to defend by organising. Our representative organisations start from a weak base and like photographers themselves seem too timid to just say ‘no’.

    We should not underestimate the data protection and privacy issue. It is not a single court case. This is just a small milestone in an ongoing erosion, but it is a significant new direction that future case law will only expand. Both EC Human Rights legislation and data protection are supposed to safeguard individual’s rights. In the Rowling case they have done that job, but the principle now set has unintended consequences. That will affect us all as principles are widened by clever lawyers using the tactical possibilities to win for their clients.

    Privacy is here being rapidly expanded and invented on the hoof by this steady accretion of legal precedent. Most of it is propelled by celebrities and business interests, wishing to deflect unwelcome interest. In UK this accretion of legal precedent is subtractive. we have almost no constitutional rights, no First Amendment barricade to stop the rot. Our press has power but no responsibility except to its shareholders. And then we have the state reducing our rights for our own good, for the deflection of terrorism. In all cases, the reasonable and inarguable excuse is the predation of wolves, but it’s the sheep who end up penned ever tighter.

    • @Tony Sleep,

      Thank you for the explanation as I now have a better understanding of the privacy threat, and I can envision a gradual erosion of photographers’ rights in that regard. The failure of US photography trade associations to exert some pressure on our own government in an effort to get the US to chime in on the Bill is upsetting. Our allies seem to be so.

  7. I have a technology question, and please forgive me if this is well-known to everyone but me. Will Picscout or a similar program, now or in the foreseeable future, pretty much eradicate orphan works? In theory, is it possible that a spider can crawl the web to find all copies of an image, and crawl through a digital copyright registry as well, and make it so much easier to track down the owner of a work, that it will simply be impossible to claim that you couldn’t find the owner unless something truly is orphaned? Technologically, how close are we to being there? I realize this only works for digitized images, but those are the images that are being stolen.
    -m

    • @Michelle, Suppose someone in Eastern Europe does a screen shot of your image from your Flash website, then uses it on a local music CD. The same image is then posted on a website, without any metadata nor identifying aspects. Another website copies that image, since it seems to be unmarked, unregistered, or simply not copyright protected. Any technology is simply too easy to circumvent.

      Even if you found an infringer overseas, could you afford to litigate? When the overseas government drafts a law to mandate a level of compensation, thereby assigning a blanket value to images, what value do you place on your images in the subsequent lawsuit? How thorough does a search by a company need to be in order to qualify as “a suitably diligent search”?

      • @Gordon Moat – it’s my understanding that under this law, the third company that has now found my work, stripped of its metadata, that wants permission from the UK government to use the work commercially, has to look for me using the common technology of the time to do so. So what I’m asking is, will that technology, very soon, be a computer program that takes a look at the picture and then searches the internet and any digital copyright archives for the same image, based not on the metadata, but on the pixels themselves? And will that program then find the original image on my site, and report back, “hey, we found it, it’s not orphaned”?

        Because *if* that’s the case, then I don’t see how Orphan Works legislation is a huge threat. It’s OK that it doesn’t define reasonable search – that’s up to the regulatory agency, which is normal – and it *does* say it should include whatever technology is available at the time. It would be bad if the legislation named specific ways to search, because technology will improve over time, and we would want whatever is the latest and greatest to be required.

        The legislation also doesn’t define the price of usage, the regulatory agency will do that too. Presumably they would look to market rates, rather than try to set the market. Of course, if they did it the other way, that would be very bad, but is there any reason to think they will?

        • @Michelle, No. Technology will not be good enough to protect your images. The software is simply are not accurate enough to be reliable. It is too easily defeated or circumvented.

          If you do not do stock photography, and currently enjoy good rates for your photography, what would you think of stock photography pricing as the model for compensation? When photographers as a group have been unable to define pricing levels, either through legislative fear or from complexity, how can a regulatory body clearly define pricing structures?

          The last Orphan Works Bill in the US was drafted to empower two new agencies to maintain a database. It was up to them to ensure accuracy. How accurate and secure have large government databases been in any country?

    • @Michelle,
      It is very probable that PicScout will find an infringement even if it has been laundered because the technology is based upon image recognition rather then coding, like Digimark. I moderated a panel discussion at a conference in Nov.’09 on which Amy Love, VP of Marketing at PicScout participated. I received some good insights into PicScout in that process. Pic Scout might find the infringement you know will eventually happen.

      The Catch 22 is how do you enforce your rights once you have been infringed and can ID the infringer. Remember, you are more likely to be infringed by a foreigner than a US domestic. I have tried to pursue legal action in a foreign country against a foreign national. It was Russia. The US based attorneys with offices in Russia told me that I had little chance of recovery of damages because the Russian Courts would be unlikely to find on my behalf because I would be prosecuting a Russian in a country that had little concern about copyright. That is a fact in many of the more than135 nations in which you can be infringed. It sucks, but that is the way it is.

      • @Richard Weisgrau, thanks for the insight. I think we’re all thinking about this from the POV of finding an infringement after the fact, but what I’m suggesting is that anyone who applies to the government to get something declared an Orphan Work will have to use PicScout *themselves*, to find *us*. And then voila, no orphan work.

        I read up a bit more on this last night and found that Canada already has an orphan works law, and that it seems to be similar to what the UK is proposing -that a government agency reviews applications and determines if something really is orphaned. It looked to me though, that the proposed US law was different and far worse, because there’s no gatekeeper checking to make sure something really is orphaned. I *think* that all that law did was lower penalties for infringing if you claimed you looked for the author.

        • @Michelle, I understand your point but I think it will not happen because they it would be unlikely that they write a product or service as a means into law. Compliance and finding ways to comply are the burden of those under the legislation. Also, a service like PicScout might find the orphaned photograph on the Web, but that does not mean it will be identified with name and contact info of the author. There millions of works published since the the 1930s that have the photographers name on them, but no one knows how to find those photographers. Many are dead. many more are retired and have no shingle hanging out on the Web. Some are just reclusive.

          During the 2008 Orphan Works campaign in the US, I suggested to the Copyright Office that it include in its position support for a Internet accessible database in which all orphan works applicants would be required to post a copy of the work, the authors name (if known, and the source of the work from which the database copy was made. Then copyright owners could search the database periodically to see if there name came up, or if they could find a copy of their work based upon sources for whom they created works. The database should also include registry of copyright owners who could add their names and contact information online. It went over like a lead balloon.

  8. Britain is a nanny state.
    Simple as that. Also bound to happen if you don’t actually have a constitution that guarantees freedom of speech etc and the protection of some statutes.
    My worries about this is that fact that a lot of european states are also turning into nanny states. If this goes down in the UK watch the rest of the EU follow suit pretty soon. Even Australia, one of the biggest nanny states in the world (ie the great fire-wall of Australia) will also be on the bandwagon pretty soon.

  9. Sorry for the seemingly amateur question, but how do you ‘officially’ copyright your images? Do you have to submit one form for EACH image at a copyright office? What is the procedure? Any help would be reassuring…
    Thank you!

    • @Sara, If you are in the US or UK, you own the copyright from the moment you create a work. I am not sure how it works in the UK, but in the US you can register a work with the copyright office, the advantage being that registration makes an copyright owner eligible for statutory damage awards and the recovery of legal costs. Without registration a court can only award actual damages (the value of a license if the infringed work had actually been licensed) and cannot award legal costs. There is a benefit to registration, and group registration of photographs whether published or unpublished is allowed.

  10. How can you expect a right to privacy on the street in a country where there are surveillance cameras EVERYWHERE?

  11. This bill by its nature – and the intent of the lobbies behind it – will transform the already changing market. It will legalize and thus promote the use of free pictures. Making it even harder to sell any photos or photo services for a fair price. But to maintain your chances of copyright protection you will have to invest more on registering works and at least publishing them in places where they find it not to claim orphan. But they will not – at least there is no grant for that – improve the existing copyright protection. They dont add possibilites to help you recover from infringings. They don’t even mention the already existing requirements of displaying the authors.

    My concern is the way a photo can get orphaned. Someone licenses it from me and publishes it without displaying the author. It is more and more often the case. Even in case of a legal use. Not to mention infringers.
    I see a lot of Creative Comons by-noncommercial photos without the name of author or a link to the source on blogs and websites with lots of adverts. In my country – and I think in US and International law as well – it is required to display the author. Period, no exception. And yet it rarely happens and in the instant my photo is orphaned by my legal licensor. They don’t care. And it is really hard to find something that is NOT there so the guy gets away with it.
    And by orphaning my image he just made it free for everyone else. And it becomes my responsibility to track down the one who uses my orphan image and try to prove it is not orphaned?

    If I never published a photo publicly on the Internet (say I sold it to an agency with a marketplace accessible by its subscribers only and the only licensor did not display my name or I sold/gave it to a customer directly who put it out on his Facebook page without my name). The image is born orphan. Someone legally having it missed to put my name on it. In this case there can no technology exist to identify me as the author.
    Am I required to publish any photo anywhere not to loose my rights as the author? Will they burn into the lawbook that “what is not found on the Internet it does not exist?”

    And how about publishers faking orphanage? Say someone uses an image that could be identified. But having this orphanage excuse they simply use the image and claim it to be orphan if questioned. I can manage to track down his infringement.