In an EPUK briefing on the Digital Economy Bill published on COPYRIGHT ACTION, devolution of power to the Secretary of State and Moral Rights top photographers’ concerns.

WHERE THE DIGITAL ECONOMY BILL FAILS UK PHOTOGRAPHERS

1. Clauses 42 and 45 devolve significant power to the Secretary of State. Clause 17 has already been removed for this reason. Clauses 42 and 45 should also be removed.

2. Moral rights – there is no provision in the Bill to compel publishers to attribute – the first step in preventing orphan status.

3. Moral rights – Germany and France have strong moral rights and publishers and users of content continue to make a profit. The argument of “too expensive for publishers” is nullified by this reasoning.

4. Metadata – currently metadata is insecure and stripped without regard. There is no technical solution to this, and current legal penalties are not strong enough to deter the creation of orphan works by publishers/users.

5. Market rate – there is no such thing. Each image is affected by the operating costs of its creator, its rarity and subject. Art cannot ever be a commodity.

6. Diligent search – there is no mechanism or method for finding the creator of an image. HMG has yet to provide a statement detailing how this search will work.

7. Rights of the subject – commercial photographs require signed model releases, often with clauses stating precise terms of use. Some subjects could be Wards of Court or on an At Risk register. Neither HMG or the IPO have provided a statement explaining how this will be controlled.

8. Contractual exclusivity – commercial photography is under threat because no photographer will be able to license their work on an exclusive basis. Exclusivity becomes impossible when a work can be orphaned and used without the creator’s permission at any time. This would restrict trade, and as exclusive licenses are sold for substantially more than non-exclusive licences, would also lessen re-investment in the photographic industry.

9. Liability – an “orphan” registered in the USA, but used in the UK could expose the UK user to $300,000 worth of damages per infringement. There is no mechanism to search the US register for images.

LINKS and DOWNLOADS

The full EPUK briefing on COPYRIGHT ACTION: EPUK BRIEFING PAPER

Download EPUK briefing PDF: EPUK DEB LORDS BRIEFING

• With thanks to tireless EPUK members and moderators Simon Brown, Paul Ellis, Tony Sleep and Andrew Wiard.