Following Tuesday’s Lords debate, the British Photographic Council has issued a press release critical of secondary legislation that will enable new copyright exceptions for private copying, parody and quotation.

‘Government adopts “friendless, unnecessary, poorly explained and fraught with risk” new copyright legislation, against united opposition from the photographic sector.

In all of the publicity over the impending introduction of new “Orphan Works” legislation, some of the finer points of proposed changes to copyright legislation have been overshadowed, including Exceptions to Copyright for Private Copying and Quotation and Parody.

These two exceptions went before the House of Lords for debate yesterday, with none of the concerns having been regarded or addressed by Government Ministers, and despite questions from the Joint Committee on Statutory Instruments concerning their legality under EU legislation.

These changes have now been approved, threatening to seriously impact photographers many of whom may not even have been aware of these proposals. The government has made these changes through Statutory Instruments, or secondary legislation, rather than being subject to the full scrutiny of parliamentary debate which accompanies proposed changes to primary legislation.

Presumably they were trying to sneak in through the back door those changes it could not get approval for via the front!

The most important relate to Copyright Exceptions, which are those recognised exceptions to UK copyright law which allow use of copyright material for education, archiving purposes etc. without breaching copyright. These currently work well and are precisely worded to ensure no ambiguity.

Members of the British Photographic Council have been expressing concern over proposed changes to these exceptions since meeting with the then Minister for IP, Viscount Younger of Leckie, over a year ago and a Joint Position Paper followed. Among the concerns were the proposed changes to the exceptions for Private Copying and for Quotation and Parody, of particular concern was the ambiguity of the wording and the impracticality relating to how photographs could be ‘quoted’ in their entirety and the separation of quotation from the previous sensible restriction to criticism and review, leaving its purposes vague and apparently limitless.

The ambiguity in the exceptions will require legal definitions that will be left to the UK courts to decide. There will be a financial impact for photographers both in loss of licensing revenue and in the cost of legal claims and damage to the reputation of photographers, particularly in the area of journalism and current affairs. Further restrictions are needed in the use for Parody & Quotation, to limit the impact of derogatory use. The impact assessments have been clearly done in a ‘one size fits all’ manner, with no consideration to the business models of the photographic sector.

Also approved was the exception for Private Copying with no compensation for rights holders, unlike in Europe where there is a compensatory levy.

We ask the Government where’s the evidence that supports these changes, who did they look to, and are they really striking the right balance for individual creators such as photographers?

The BPC supports concerns over the legality of these draft regulations that have been raised by various bodies such as the British Copyright Council, and our members including BAPLA, NUJ, AOP, BIPP, EPUK, BPPA and Redeye. We believe the Government would be acting ultra-vires, beyond its powers, if these regulations are implemented as drafted.

The BPC wrote to Lord Stevenson of Balmacara, Lord Clement Jones and Baroness Buscombe outlining these concerns, asking that they reject these proposals so that they can be subjected to the full scrutiny of Parliament via primary legislation.

Lord Stevenson of Balmacara, Lord Clement Jones, Lord Scott, Lord Berkeley, Lord Grade and Baroness Morris clearly shared our concerns by speaking during the debate. The exceptions were approved by the House of Lords with scepticism from our supporters.

We want to see the Government start the process of a proper impact assessment straight away, working with photographers and their representatives to review the impact it will have over the next year, and ask both Parliamentary Houses to table the review at the earliest in 2015.

Surely this approach is the purpose of legislation and the practice of good policy.

The British Photographic Council (BPC) represents over 20,000 photographers via 14 member organisations including trade associations, unions, institutes and networks. They are: Association of Photographers; British Institute of Professional Photography; British Press Photographers’ Association; British Society of Underwater Photographers; Bureau of Freelance Photographers; Chartered Institute of Journalists; Editorial Photographers UK & Ireland; Master Photographers Association; National Association of Press Agencies; National Union of Journalists; Outdoor Writers and Photographers Guild; Pro-Imaging; the Royal Photographic Society and Redeye, the Photography Network.’

Some history

The statutory instruments complained about are the end game of changes to copyright that Government has been attempting to introduce ever since the 2011 Hargreaves Report (also known as the Google Review, after the tax-avoiding software giant told David Cameron it could never have been founded in UK thanks to UK IP laws). In fact many of Hargreaves proposals could be traced back to the 2006 Gowers Report. It’s fair to say that photographers have now endured nine years of futile attempts to get successive governments to listen.

In 2012, the Enterprise and Regulatory Reform Act turned out to contain significant changes to UK copyright, including provision for orphan works licensing and for extended collective licensing. It also allowed the Secretary of State to create new exceptions to copyright via secondary legislation, thereby avoiding Parliamentary debate. Parliament passed the Bill, accepting at face value the empty assurances that nothing would be done without yet more exhaustive consultation.

Government were as good as their word. Through summer 2013 representatives of the photo sector held a series of meetings chaired by Serena Tierney, a leading IP QC, to examine and advise on the draft exceptions. The aim was to try and assist Government to produce non-toxic regulations that would avoid unintended consequences. It is clear from the regulations as they now stand that absolutely no notice was taken. The BPC press release says nothing that it, and every other significant photo organisation, had not previously said a year ago, and in many previous consultations.

The Lord’s debate

It was always a foregone conclusion that these statutory instruments (SI’s) would pass, and that debate at this stage could be no more than a formal opportunity to yet again, for what seemed like the hundredth time in recent years, press Government for answers. As ever, none were forthcoming beyond the customary dismissive assurances from the Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills, Baroness Neville-Rolfe.

The entire debate can be read in Hansard. Much of it has no direct bearing on photography, but here are a few choice quotes:

Lord Stevenson of Balmacara (Lab):
“I am sure that the Minister will have received a great deal of correspondence recently from photographers, both members of various groups and individually. Their point is important because their argument is that photographs can be ‘quoted’ for genuine criticism and review but are excluded from the exception to copyright when reporting current events. They say that this is a tried and tested definition which has worked. Introducing a more general right of quotation, however, introduces ambiguity and uncertainty that will require legal clarification in the courts, costing rights holders legal fees and lost revenue.”
…
“The Government have proved unable to be responsive to the needs of the times when bringing these copyright exceptions forward under the secondary legislation route; they have missed an important opportunity to raise the status and knowledge of IP by not using primary legislation; they have ignored the comments and advice of the expert committees in Parliament; and they have failed to reach a consensus with key stakeholders involved in this policy debate.”
…
“The feeling in the industry is that the battle over these regulations is over and that those affected have been consulted to death but not listened to and, as a result, are simply exhausted. That, more than anything, suggests that the Government have got this completely wrong from beginning to end—although, in fact, I do not think that we have heard the last of these proposals.”

Lord Clement-Jones (LD):
“There are, of course, multiple legal bones of contention. Will the exceptions meet the requirements of the Berne convention and of the three-step test set out in the 2001 information society directive? That states that an exception can be applied only: in certain cases; where it does not conflict with a normal exploitation of a work; and when it does not unreasonably prejudice the legitimate interests of the copyright holder.

Many rights holders are strongly of the view that they do not meet these requirements. Exceptions create contract override provisions that would render unenforceable contracts that seek to restrict or prevent the relevant exception. As a new and untried concept in UK copyright law, this has not received nearly enough examination and consultation.”
…
“In fact, there is likely to be a negative impact on rights holders given that under the personal copying exception they will have to give free licences for services such as cloud lockers, which are a potential source of valuable revenue. Photographers and photographic and news libraries make similar arguments in their evidence about potential loss of revenue under the quotation and parody exceptions. Minimal benefits are cited for those under the impact assessments, but it is clear that the risk of licensing revenue loss for them is considerable.

Furthermore, has any analysis of the impact of the exceptions on the UK’s competitive advantage been carried out, in particular on whether it will encourage content companies to contract in other jurisdictions? Rather than encouraging innovation, these provisions could encourage challenge and breach of licensing terms. Will investors now turn away from the UK and invest in content made in other jurisdictions where they can freely negotiate contracts?”
…
“How confident are the Government that these exceptions will survive legal challenge? The JCSI reflects the views of many when it points out that the Government must, if challenged in court, show that ‘no compensation’ is ‘fair compensation’.”
…
“As for the wording of the quotation exception, what is fair dealing? It is not defined in any detail; all types of work are treated the same—so, for example, a whole photograph, perhaps, could be reproduced without permission. The noble Lord, Lord Stevenson, referred to a number of organisations representing photographers, and they are numerous—the British Photographic Council, Getty Images, the British Copyright Council and the British Association of Picture Libraries and Agencies. They all have in common the fact that they are deeply worried about the quotation exception.
New wording has been added about when acknowledgement does not need to be given. How will ‘impossible for reasons of practicality’ be interpreted? Is it right that there should be this relaxation of moral rights? Surely, as regards photographs and video, is not all this premature before we have dealt with metadata in a proper fashion? Should they not have been excluded from the quotation exceptions in the first place?”.
…
“There are not definitions of ‘parody’ ‘caricature’ and ‘pastiche’ in UK law, so we have no precedent as to how the concept of fair dealing might be applied to the use of a copyright work in the making of a parody. How is this going to be consistent with what is called the moral right of integrity, allowing a right holder to prevent reputational damage? Surely, in these circumstances, is not a duty of acknowledgement even more important?”

Lord Berkeley of Knighton (CB):
“Many people working in the creative industries live on fairly modest means. Their royalties need to be protected—without them, they will find it very hard to survive. Not everyone has the kind of income generated by incredibly successful pop groups or commercial composers, yet those composers who are perhaps working at the sharp end—those artists and photographers—are precisely those who spread the word about the cultural life of this country. I fear that we may be bolting the stable door after the horse has disappeared”

Baroness Morris of Yardley (Lab)
“The history of this is very long, and we are left asking if after all those years of consultation and all those meetings, with everyone being opposed to it, what is it doing here in the House about to be passed? Consultation has an element of taking people with you, or persuading people and putting them in the position of seeing the strength of the argument. That has not happened in the sector, which is the sadness of today. As it is not primary legislation we know that it will go through at the end of this debate, and in terms of a responsible House and good-quality legislation that is to be very much regretted.”
…
“In introducing the debate the Minister said that it is quite clear in cloud technology that it is for personal use only and does not allow friends, family or anyone else to use it. However, it is easy to happen. We will see exactly what happened in the film and music industries. Half the world will say it is illegal and the other half will say that it is easy and everyone does it, so it will continue.”
…
“Secondly, what makes this issue different is that these services are commercial. People are making money from them. They are monetised and revenue earning.”
…
“Rather than looking at the evidence and weighing up the different cases—which I know are contradictory—the Government have sought a few phrases with which to justify a decision that they wanted to make. The cloud will stand to benefit financially from this legislation. It will make it financially a more attractive service because of personal copying. Because of that, the people who will lose are the rights holders and the creators.”

What next?

The exceptions will be voted upon, as a formality and without further debate, some time in October, and at that point will become law.

That may well not be the end of the story. As a result of copyright changes in the ERRB a consortium of creative industry heavy-hitters including AP, PA, Getty and Reuters threatened to take High Court action against the UK government. This claim for judicial review could not progress until the precise wording of the secondary legislation was fixed into law. In October, it will be.

There have also been warnings of litigation from overseas, most notably the American Society of Media Photographers, along with numerous other US creator organisations, predicted a ‘firestorm of litigation’, should the ERRB ‘permit foreign works of unknown origin (known as “orphan works”) to be used without permission or credit and compensation to rights holders’.

And of course there is the prospect, spelled out in the BPC release, and more luridly at the Register of litigation to define what government hasn’t bothered to: what is meant by ‘quotation’ or ‘parody’ or ‘pastiche’ of a photograph, what is or isn’t ‘fair dealing’, what is or isn’t ‘private use’. But access to the courts is limited to those with deep pockets, which is neither creators nor the public. This means only profit-seeking corporations will get to define these terms. We are entitled to wonder if that was not the Government’s intention all along.

In short, Government has taken nine long years to make an even worse mess of copyright law that was already defective, confusing and frustrating to the public, feeble for creators, and open to abuse with impunity by powerful publishers and aggregators. What they cannot claim is that we did not tell them.

Text © 2014 Tony Sleep