The Digital Economy Bill

by Nick  

Letter to my MP

Thank you for your reply to my letter late last year regarding libel reform. I appreciate the time you took to follow it up and the detailed response. I write today regarding a Bill currently in the Lords which has implications for intellectual property which could adversely affect amateur and professional photographers.

Under existing law, the creator of a photograph is ordinarily the copyright holder. This right is automatic and without formality. The Digital Economy Bill (S42) allows this copyright to be set aside by those who wish to make use of works, in the circumstance that they are unable to trace the owner and negotiate usage.

These so-called 'orphan works' are a problem for museums, galleries, universities and archives who cannot legitimately use historic photos without risk of legal action. This inhibition is clearly not in the public interest. However, the measures proposed under the Bill to deal with orphan works open a substantial loophole.

The proposition is for the creation of a collecting society (similar to the Performing Rights Society for music) which would license use of orphaned works for a fee. If the author of an orphaned work discovered the use, they could claim a fee from the society. BIS has made it clear that it will not limit orphan licensing to those cultural organisations who lobbied for the right, but will also allow commercial publishers and industrial users of photography to exploit copyright works for any purpose, provided they cannot trace the owner following a "reasonable search".

The problem with this approach is twofold: there is no reliable means to irrevocably bind authorship to a digital photograph. It is relatively straightforward for authorship data to be removed, deliberately or accidentally. Indeed most images online are posted without authorship data, as part of common practice to minimise file size. Then, the idea of "reasonable search" is ill-defined. For instance, the Bill refers to searches of sources including associations of publishers or authors and published catalogues (S42 116C 10). Yet the majority of photographs created by amateurs, or indeed many professionals, are unlikely to be in such sources. Fundamentally, "reasonable search" has a much lower standard of due diligence than would be publicly accepted for physical property such as a house.

As drafted, this Bill provides a means for commercial exploitation of photography without adequate protection, or duty of care to prevent creation of orphan works. Section 42 devolves detail regarding these matters to regulations yet to be devised by the Secretary of State for Business, subject only to the relatively limited Parliamentary scrutiny of statutory instruments. This was noted by the Lords Select Committee on the Constitution which felt that the Bill gives too much latitude to the Secretary of State. His response was that the regulations need more flexibility than appropriate for primary legislation. Clause 17 has also drawn concern from the Delegated Powers and Regulatory Reform Committee and the Human Rights Joint Committee. A joint memorandum from DCMS and BIS claims that "No [EHCR] Articles are engaged by the provision itself as the provision only contains a power and has no immediate substantive effect". This is a weasel argument for such wide-ranging reserve powers, as the scrutiny provided to secondary legislation is invariably less.

This section of the DE Bill aims to open up a valuable public interest protection for archives currently constrained by copyright law. However, it also creates a back door for an unprecedented loss of protection for individuals and small businesses which is already difficult enough to employ in practice: google "online photo theft" to see the scale of the problem. The Bill places an onus on authors to notice that their work has been exploited and make a claim (subject to the approval of the Secretary of State) to reinstate the copyright protection that they had lost.

I would ask that you do not support this Bill unless amended to increase protection to individuals whose work is orphaned. The creation of a collecting society is an expensive solution which could instead be addressed by extension of existing "fair dealing" exceptions to copyright law for appropriate cultural organisations. Even if a licensing body is considered a worthwhile bureaucracy, then restricting orphan licensing to museums, galleries, archives and academia in the primary legislation would limit the risk of exploitation. At the least, Parliament should consider the constitutional implications of conferring such open-ended powers on the Secretary of State without adequate oversight or consultation.

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