This is a long essay. If you prefer you may download a PDF version.

How to make a law without saying what the law is

On 2 May 2013 the Enterprise and Regulatory Reform Act (ERRA) became law in the UK and the internet suddenly noticed changes to copyright that have been in gestation since before the 2006 Gowers Report.

There has been an eruption of alarm and concern among photographers, fuelled by a lack of facts and often aided and abetted by bloggers and journalists who either don’t – or won’t – understand the ERRA changes, or copyright, or the background. The result has been an explosion of FUD, a good deal of which is misdirected at orphan works. That is the least worst part of this law.

The lack of facts is nobody’s fault but the Government’s. Vital aspects are simply unknown, unresolved, and in some cases apparently incapable of solution. Time and again you will see that crucial matters have been left to this or any future Secretary of State to decide without further parliamentary discussion.

The changes don’t look like much – the addition of S116A, S116B, S116C, S116D to the 1988 Copyright, Designs and Patents Act. But this handful of paragraphs make the most major changes in UK copyright history. For the first time since the Statute of Anne in 1710 the State has appropriated rights that have exclusively belonged to authors.

What, if anything, the Government will do with these rights, nobody knows. Government itself is not yet sure.

What was entirely the copyright holder’s business is now the government’s too. These changes will affect every citizen who creates, probably for much of their working lives. Acts that redefine copyright have run on epochal time: 1710, 1842, 1911, 1956, 1988. Meanwhile the new law will gradually be interpreted and modified and reinterpreted, as it is designed to be, in response to market pressures, social and technological change. Successive governments will now be able to quietly re-purpose copyright in ways that are at present politically impossible.

As of today nothing has changed. Yet if you listen to the silence you can hear ticking. This law resembles the Schrödinger’s Cat thought experiment, where we are the cat. We simply don’t know yet whether we are alive or dead.

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Don’t say we didn’t tell you

It should not have happened like this. All these matters have been aired in detail since 2005, by photographers and our representative organisations, across three government inquiries and more consultations than Gypsy Rose Lee. Thousands of unpaid man-hours, literal millions of words have been written and spoken in the effort to explain photographers’ relationship to their work and place in culture and business, to a succession of bureaucrats, legislators and quangos.

Some of it has been productive, alas far too much has not.

Photographers have been piggy-in-the-middle. On one side, powerful corporate and cultural interests able to professionally lobby Government, for whom our copyright is an impediment. On the other the voting public and academics, who in general see copyright as a mechanism of monopoly pricing and unreasonable restriction.

Neither have much inclination to see copyright as a necessary means of protecting and nurturing the small creative businesses the UK is supposed to be so good at producing. Only recently has the public begun to understand they are creators for whom copyright matters too.

The Intellectual Property Office (IPO) say that it is their job to balance conflicting and contradictory interests of these different stakeholders. It is an unenviable task. But as the least weighty group, creators just haven’t counted for much.

Nor has the IPO seemed impartial. Because of the Chatham House rule imposed on meetings by the IPO, I can’t tell you who said that a requirement for attribution would never appear in their orphan works legislation, and if that was what we wanted we should go and sponsor our own private members Bill.

This kind of faux-consultation non-dialogue is why they have had to deal with a disruptive protest movement instead. We’ve had years of airy dismissals regarding moral rights and metadata as adequately protected. Both of which are limited, feeble, incapable of enforcement and utterly disregarded as a result. As Lord Clement-Jones said ‘if the Intellectual Property Office isn’t trying to protect IP and it’s called the IPO – I wonder who is’.

These IPO anti-copyright anti-creator attitudes earned them a reputation for Intellectual Property Obliteration and led to an all-party inquiry.

Repeatedly the IPO has bemoaned that photographers are disorganised and unable to formulate a coherent position.This is a statement of the obvious. We are disparate individuals with wide ranging values, ideas and motivations, often opinionated and often in competition with each other. Yet we do have this in common: we are the people who make the images that everybody else is fighting over, to earn money from, to use to enhance their work, or to consume.

For us, copyright is simple: our photographs are our asset, we often have years of effort and experience invested in them, and copyright is our title to them.

It matters profoundly that copyright is fair. It cannot be effective unless the vast majority of the population accept it as a benign and necessary quid pro quo. That copyright is so often treated with contempt or used as a tool of iniquity tells us copyright needs to change for sure.

That is the debate that should have happened but did not. The ways in which it has just been changed, and left unchanged, seem certain to make matters worse.

For most of us who make photographs copyright is more than economic rights. Hargreaves terms of reference were a one-eyed quest to optimise economic opportunity whilst ignoring moral rights.

For most creators this was the opposite of what was needed. We are parents of images, not pimps. We do not want our work abused. Yet we do want to share freely for people to use and appreciate: that is why photographers put their images on the web. Control of who may fairly do what with them and whether we want to negotiate payment is fundamental for most photographers. Corporates, consumers and free-culture advocates would prefer we did not have that control.

At best ERRA copyright change might appear neutral, until you look at what has not been done. For many years big rightsholders have had far too much power to dictate prices and terms to both buyers and suppliers, to enforce their own copyright whilst grabbng or routinely infringing the copyright of individual creators, to ignore ineffectual law on moral rights and metadata. Exasperatingly, not one of these deficiencies in existing law has been remedied after years of asking.

What was that about ‘balance’? How does fixing none of this encourage creativity? Is not the point of copyright to protect ownership in order to enable creative investment? And where in all this is any moral leadership toward copyright law that people as a whole might actually respect?

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Credit where credit is due

In many ways the 1988 Copyright Designs and Patents Act was a good law for photographers. It took much effort by photographers to gain automatic copyright – unless we were employees – of what we created. Yet there were serious omissions, most significantly the moral right to be identified as the author. Most other media gained that right, which is why you never see an anonymous CD from Sony, or Harry Potter story bylined Bloomsbury.

But newspaper and magazine publishers opposed mandatory bylines and at the last moment the 1988 Act was amended (S.79.5 & S.79.6) so that photographs published in most contexts needed no attribution. The feebleness of moral rights and the deprecation of photographers’ identities are a direct cause of the so-called ‘orphan problem’ used to justify the changes now at hand.

If, in 1988, there had been a clear duty to preserve authorship details, publishers would far less often be scratching around trying to find out who took a particular photo they now want to use and complaining about how hard and costly it is to identify the photographer.

Yes, there would still be historic orphans, but there would not be the daily industrial manufacture of millions of new ones.

Remarkably, this lesson still has not sunk in. Publishers have continued to object to any legal duty of care toward attribution and the preservation of metadata as “too onerous”. That intransigence shaped the imbalance of the ERRA. Only belatedly have they begun to see that metadata is the key to technological solutions for problems that they face too.

Where did that wooden horse come from?

Although in 2005 Government ostensibly set out to solve the ‘orphans problem’ for museums and libraries, there has been a massive amount of mission-creep, obscured by smoke and mirrors. By 2011 the Hargreaves report, the source document of ERRA, was nakedly about adjusting copyright for ‘ innovation and promoting economic growth in the digital age’. In that commercial narrative photographs are a raw material to be profitably exploited, nothing more.

Yet the IPO PR dept has chuntered on as if the entire mission was still the noble rescue of our cultural history from the egregious dustbin of copyright. At every opportunity the Right Honourables and Noble Lords have been induced to imagine the cellars full of shackled orphans at the British Library and the British Museum, and to do the right thing. This is blindfold lawmaking, and the perhaps-not-entirely-unintended consequences are before us now.

Consequently the ERRA does rather more than liberate old, lost images for study. It scoops up every image, orphaned or not, and potentially offers them for sale. Terms and conditions apply, of course. It’s just that Government can’t yet tell us what they are. Nor what they will become in the future.

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Everything you need to know, but can only guess

DISCLAIMER: this section contains known unknowns, and may contain unknown unknowns and nut extracts. It is a mix of fact and informed opinion and I’ve tried to clearly distnguish the two. You should not rely on anything herein as legal, financial or career advice.

What is an Orphan Work?

An orphan work is an in-copyright creative work whose owner (or heirs or appointed agent) cannot at present be traced and contacted.

What is the problem with Orphan Works?

Under copyright law within UK and internationally, a copyright work cannot be used without the rights holder’s permission.

Cultural organisations such as the British Library say they have vast numbers of orphan works that they can neither digitise nor publish, and that this deprives both the public and researchers of much historic and culturally valuable material.

Whilst true, they are not monasteries of pro bono cultural philanthropy. They operate as businesses too, they sustain careers, and they monetise, hold copyrights and license and sell materials they own, and have £99,279,000 invested in funds, properties and equities.

Nothing wrong with that, but it’s easy to form mistaken impressions when press officers get busy. Not to pick on the British Library, much the same would be true of all the universities, museums and institutes who have played the public access card. The point is that there is no tidy separation between even the noblest cultural institutions and business. They are both.

It is also true that all large corporate publishers, picture libraries, broadcasters and many other companies store material created and owned by other people. They too have a vast ‘orphans problem’, material they cannot legitimately exploit.

And then there is the 800lb $50Bn gorilla in the room, Google. To say Google’s role in copyright reform is large would be an understatement. PM Cameron’s persistently close relationship with the multinational tax-avoider even led to the Hargreaves Review being nicknamed the Google Review in some quarters. It argues for as wide a range of exceptions as possible, and warns that almost any threat to increase or enforce copyright law will ‘break the internet’. Its public submission was carefully dressed as erudite research for the good of all. Some is bizarre. According to Google not only is UK copyright law too complicated but ’67% of innovating companies reported that they had been forced to change their products because what they wanted to do was illegal’. Apparently Google’s solution is to make evil easier and legal rather than follow its own advice, ‘don’t be evil’.

Google alleges it is keen to support creators, but it’s equally keen to see a replica of the American Digital Millenium Copyright Act [DMCA] ‘safe harbour in UK law. Among many creators this is seen as no more than a ‘get out of gaol’ card. There is a whole internet culture reliant on infringing with impunity safe in the knowledge that there is nothing the creator can do except jump through DMCA take-down hoops. Pinterest and a whole raft of clones only exist for sharing other people’s photos. Allowing pirated material, until told to take it down, adds value to many businesses, including YouTube and Google itself.

In the USA, where the exact same battles over copyright are in progress, Google is forthright about its orphan ambitions. Its attorney Alec McGillvray has said ‘[We] expect that [Google’s] use of these orphan works will likely be in the 1 million works range… we know that many of them will be in the public domain, that most of their authors won’t care. But there are a few that really will care and they will come forward [to ask for payment] and it will be extremely inefficient for us [to have to pay them].’

There is also the web, the orphan mother lode, where literal billions of images exist yet identifying and contacting authors can be difficult or impossible. There is no legal way to exploit these orphans under copyright law. But have no doubt crowdsourcing and automation are widely seen as the future of commercial media.

So the ‘orphans problem’ is only partly and for PR purposes about culture and public access, and, less transparently, about prising open a vast commercially exploitable resource.

But it’s all sorts of material, not just photos?

ERRA covers all creative media, whether textual articles, poetry, books, music, film, paintings, illustrations etc as well as photos. In most of those media, orphans are a limited problem.

Photos present a different magnitude of difficulty, partly because their pictorial nature tells you almost nothing about ownership, partly because bylines and useful metadata are rare, and partly because they are so prolifically created, copied and distributed, and have been for over 150 years.

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Surely nobody wants to see old photos locked away. Who could object?

Nobody does. All photographic representative organisations accept there is a bona fide cultural problem that needs solving. Indeed most have suggested mechanisms for allowing cultural use, going right back to 2005 submissions to the Gowers review of intellectual property.

But there is deadlock over the continuing prolific creation of orphans. It is starkly unreasonable and improper to create a legal right to use works whose authors cannot be identified whilst there remains no legal right for authors to be identified. Even the IPO accept the logic is inarguable, according to Mike Holderness of the Creators Rights Alliance. They just won’t do anything about it.

Until mandatory attribution and a duty of care to preserve metadata is given legal force, the cultural pleadings on the orphan issue will continue to be mistrusted as a Trojan horse for appropriation, exploitation and abuse.

So why are photographers so opposed to orphan licensing in ERRA?

Whilst the cultural argument is accepted, many commercial organisations such as the BBC, Associated Newspapers and News Corp have argued for a right to use orphans from their archives, many of which they have created by deleting or losing ownership information.

In addition, the very large proportion of orphan photos on the web could be claimed for orphan use. In 2006 the American Society of Media Photographers testimony to US Congress estimated 90%.

My own attempts at diligent search suggest nearer 50%. Few images have metadata intact. Most are amateur images that never had any authorship associated, or only pseudonymous nicknames that cannot be traced, or trace back to dead or derelict accounts or anonymised domains, or people who have moved address or now have married names. Very many are illicit copies of unknown origin. Many images are falsely attributed. Some are fakes with deliberate mis-attribution.

A major objection is that ERRA enables the use of orphans not only for cultural use, but for commercial use. The IPO insists orphan licensing will not undercut the market, so will be benign. But why liberate of orphans only to park them behind price tags and paywalls, away from the free cultural access which is purportedly the reason for the law.

Commerce is not the answer to everything. Unmentionable in the orphans polemic is the vast inventory of ‘out of commerce’ cultural work that is locked out of public reach by publishers owning rights they do not use, or museums destroying archives of historic photos.

The EU Copyright directive on Orphan Works deliberately limits licensing to strictly non-commercial cultural use (‘display, digitisation, making available, indexing, cataloguing, preservation or restoration’). It permits revenue generation, but only to cover costs. There doesn’t seem to be any sensible explanation for the UK’s laissez faire other than a hidden agenda. And the rush to law within the ERRA is probably what it looks like, a tactic to sidestep the EU’s restriction of commerce. The EU directive allows precedence to existing national law where there is difference in detail.

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What does the ERRA change?

It adds four clauses to the 1988 Copyright Designs and Patents Act.

S116A introduces the possibility for orphaned works to be licensed for copying or publication.

S116B enables Extended Collective Licensing (ECL) as a mechanism for collecting payments for the licensing of copyright works.

S116C defines the scope of regulations that may apply to S116A orphan licensing, including the power to change the scope.

S116D defines the scope of regulations that may apply to S116B extended collective licensing of copyright works, including the power to change the scope.

However, as of now ERRA has changed nothing at all. Copyright law is unchanged until regulations are enacted. S116C and S116D are ‘Henry VIII clauses’ that act as placeholders for future statutory instruments(SI’s). S116A and S116B will have no effect until these regulations are introduced by the Secretary of State at a later date.

There has been deep hostility and suspicion surrounding the fact that so much of what is a major change to copyright has been devolved to regulations that will not receive full parliamentary scrutiny. Cynics believe the IPO did this because it could not win the moral arguments. That it has resorted to brute force and keeping MP’s, who by and large know less about creators and copyright than a mushroom, in the dark.

Whatever the motive, creators’ copyright is now a matter that can be very substantially eroded in future with no parliamentary debate at all. Whilst it’s true to say, as the IPO does, that our copyright has not been abolished, at least not yet, it is true to say we have been disenfranchised. SI’s are a parliamentary formality, MP’s simply vote yes or no. It is extremely rare for an SI to be annulled, the last was in 1979.

What will these these Regulations say?

Nobody knows any detail except the IPO. There is ongoing consultation which includes a few photographic organisations, the British Association of Picture Libraries and Agencies, the Association of Photographers, Stop43. Confidence in getting Government to listen is thin, based on years of previous attempted dialogue.

The regulations will set out a number of mechanisms:

1. What will constitute a diligent search necessary to qualify a work as an orphan.

2. The detailed operation of ECL schemes, including who will be authorised to operate ECL, specifications for a code of practice that ECL’s will be expected to devise then use for self-regulation, how money will be distributed less transaction cost,and what becomes of unclaimed money.

3. How a rights-holder may opt out of ECL schemes.

4. It’s rumoured that there will at last be obligations for dealing with metadata. There is a working group. This could be good news.

Taking a longer view, future regulations could change anything that is not constrained by the primary legislation. That there are few constraints is a worrying aspect of the ERRA changes to copyright.

Hang on, what is a Diligent Search?

Vapour-ware. Academics have worked for years to define protocols for establishing whether a work can safely be called an orphan. The fundamental difficulty is that absence of proof is not proof of absence, so ‘diligence’ is just an arbitrary point at which the search is abandoned. For some other media, like text, it’s fairly straightforward to search quite comprehensively. For images, it isn’t. and negligent search is hard to avoid.

UK Government is known to favour something like the work-in-progress protocol of the European Digital Library project, but in practice it is broken. Visual search is immature and limited in scope, other resources either do not exist or are so incomplete as to be useless.

Done properly, an image diligent search will be quite arduous and often inconclusive. Coupled with assurances that diligent search will be independently validated, and perhaps because of the enormous ruckus photographers have created, we may well end up with a system that is too slow and cumbersome even to unclog legitimate orphans. At least initially.

Before you think ‘a lot of fuss about nothing then’, if you’ve read all the foregoing part of this article you will understand that this is a frog-boiling proposition now that we have been placed in the pot. Any orphan scheme will henceforth be adjusted with no fanfare by statutory instrument(SI). You think you’ll hear about that? There were over 1,100 SI’s last year. Name one.

When will the regulations be implemented?

The IPO has said October 2013.

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Who gets the money from orphans?

Pending regulations, this is uncertain.

Where orphans are licensed, the original idea was that the fee would be held in escrow for some years in case the revenant author came forward to collect it. This created an argument about who would get unclaimed funds, with some saying it should be used for the general benefit of creators, and others that Government should trouser it. More recently there have been cultural pleadings that it is extravagant to pay for all this stuff unless they have to. That is, the licensee wouldn’t have to pay at all unless and until the author comes forward.

Latest indications are that the original plan for escrow with bona vacantia has prevailed.

So what is Extended Collective Licensing?

ECL is the core change in copyright law, and has not received nearly enough attention from commentators who have been preoccupied with the rather simpler orphan issue.

‘Collective licensing’ (CL) acts on behalf of a group of rights holders to license their work, collect fees from buyers, and distribute the money to its members. That’s commonplace and familiar, and pretty much how photolibraries work. You join by signing a contract, your work is sold, you get some money in return.

CL is how orphan works will be licensed.

‘Extended collective licensing’ (ECL) goes a lot further, in that it licenses anyone’s work, whether they are a member or not. That is, whether they have signed a contract or not. And, in the ERRA realisation of ECL, your copyright work may be be sold without your permission unless you have refused permission by opting out.

ECL is not about Orphans. As written it applies to all ‘copyright works’. This includes unpublished works as well as published.

This contravene’s copyright’s basic principle that it’s the exclusive right of the author to control sale, to exploit or not to exploit.

Under the Copyright Designs & Patents Act 1988 S.107 this would be a criminal offence. In the ERRA Government has changed copyright to allow it.

Even where the owner is easily contactable, their work could be licensed without their consent.

There is no ambiguity or wriggle room here but the IPO has headlined it as a myth. They say ‘the safeguards included in the scheme mean that ECL is only likely to be an option where there is strong existing support for collective licensing.’ But there are no safeguards in the primary legislation, so any that exist will be by regulation and mutable.

Also absent is any recognition of Article 9.2 of the Berne Convention. That requires that any licensing scheme ‘does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author’.

ERRA’s opted-in-by-default formulation contradicts an EU requirement that ‘ECL systems remain voluntary: both the user and the rights holders must agree on contractual provisions.’ Opt-out means they can’t.

Reassuringly the IPO says ‘it is unlikely that ECL will be an option for photography where there is a strong tradition of direct licensing: there is no collecting society for photographers in the UK, so no application for an ECL is feasible at present’

What is less than reassuring about this reassurance is that ‘unlikely’ is not any sort of ‘won’t’. Note also ‘at present’. Moreover there is a collecting society for photographers. DACS’ spokesperson says they have been having a ‘massive row’ with the IPO about this inaccuracy, whilst pointing out they won’t get involved with ECL unless photographers ‘as a community’ ask them to.

It is the IPO that will set out the regulations for the Secretary of State to sign.

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What is the objection to ECL, surely it makes life easier?

It helps to be hypothetical here, in order to understand the implications. Imagine a few years hence.

Let’s say IPO decides after all to implement one or more ECL bodies for licensing, say, the use of copyright images by the cultural sector. Or education. Or registered charities. Or Government publications. Or the BBC. Or Google Books. Or newspapers. It’s conceivable that any of those sectors, or others. could lobby the Business Secretary and say ‘look, the inefficiency of individual licensing of images that we need to use off the web, is killing us, we must have ECL. We have consulted photographers who supply us and a majority don’t object…’

ECL provision has been created for the express purpose of increasing the economic efficiency of licensing. Who really thinks the Secretary of State is going to indefinitely say no?

Until ERRA, anyone wanting to use copyright work was obliged to find and contact the owner and obtain permission. This is an opportunity to negotiate price, if the owner wishes to be paid, and other terms. It is also, crucially, an opportunity to say no to the usage, perhaps because the owner wants the image to remain private to existing clients or to friends and family, or perhaps because they do not approve of the proposed use.

ECL turns this upside down. Permission to publish is assumed, price is whatever is deemed to be fair by the ECL body, any legal non-exclusive use is presumed acceptable.

IPO asserts that ‘The powers do not remove copyright for photographs’. These are weasel words that disguise the emasculation of copyright itself in any sector where ECL is applied. For the owner of that copyright ECL is a fundamental inversion of how copyright works. Only a spin doctor could still call it copyright. You can only restore your copyright to the full-fat version by opting out of ECL. But that is another problem: the Berne convention Article 5.2 requires copyright to be ‘without formality’, and what is opt-out if not a formality?

If ECL was opt in, few would object. But then it wouldn’t be ‘extended’. The ERRA’s opt-out default guts the copyright holder’s control of their work. The only control that remains is a right to sell outside ECL, and a right to sue for damages for infringement.

Some photographers, if they just want sales of everything to anyone for any use at any price, may welcome this as an efficient method of licensing that requires no effort or negotiation from them.

Others will see it as annihilation of essential rights that makes it impossible to put work online without defacing the images using obtrusive spoiler watermarks. But unwatermarked copies shared with others may still end up on the web and could be liable to ECL.

In conclusion, if you want to ensure your work will not be licensed via ECL, you will be obliged to opt out as soon as a scheme is implemented that might make use of your work. And assuming you get to hear about it. Or ensure none of your work is ever placed on the web by anyone, or published in print from where it may be copied. Which pretty much ensures you are an ex-photographer.

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But hang on, didn’t you say that ECL could only apply where it won’t undermine normal exploitation of the work?

Indeed, that will have to be in the regulations and might lead you to believe that the whole idea is a nonsense that cannot go ahead, because ECL will surely undermine licensing by the copyright holder.

This is true for professional images, but from discussions, it seems most professionals will immediately opt out of ECL anyway.

But what about the vast majority of images on the web, whose authors are amateurs and hobbyists? Social sharing is the whole of ‘normal exploitation’ for them, and that won’t be undermined. Most have no intention, motive nor ability to exploit their work for financial gain. They want work seen, and will probably like ECL for that additional opportunity, especially if it earns a few quid. They will be unable to complain that ECL has lost them revenue, in just the same way they now can’t sensibly sue for infringement damages because they can’t prove any loss.

We are told ECL in any sector will not happen without the consent of a majority of photographers, to be determined by consultation. We have some idea how that works from years of a back-and-forth about copyright changes. All consultations revolve around a proposal, and the answers given reflect the question and who responds. It is not going to happen that every photographer gets consulted. It’s up to photographers and photographers organisations to respond and express their view. That is how every consultation over the past 8 years has worked. If you missed the invite or couldn’t be bothered, well, that is how it works.

How long before there is a Flickr, Twitter, Facebook or Google Images-based ECL body, set up to service one of these markets? Or some entrepreneur sets up an aggregation site to pull together all the work of amateurs who’d like some ECL beer money?

It seems a racing certainty it will happen simply because the law is now in place to permit it, and if someone can see a way to make money from it they will. It’s exactly the ‘innovation and growth’ the copyright changes were introduced to facilitate.

There have been clues elsewhere, too, that ECL is intended to cater for inherently low-value licensing.

For that reason I believe the target of ECL will sooner or later be amateur images, and ECL could become a form of compulsory crowdsourcing, with opt-out of course. Publishers would no longer have to wait for the public to send in images, they could simply find and use images off the web without asking.

This will not happen by initial regulations because, as far as I know nobody has suggested it. Give it a year or two.

But did you not also say that there had to be an existing model of ECL?

Yes, and there is. The Design and Artists Copyright Society (DACS) is a non-profit extended collecting society that collects around £3m a year on behalf of photographers and illustrators through their ‘Payback’ scheme, in return for licensing low value, high volume copying such as photocopying rights. The collected cash is disbursed annually, less operating costs, to those who are eligible to claim it.

DACS Payback levies aggregated royalties because it’s impractical to keep track of what is copied. Sites where copying occurs pay for a blanket license. This means there is only a vague correspondence between money paid out and the extent of copying of any member’s work. Many receive more or less than they really should, agencies also claim and skim off a percentage for themselves when they shouldn’t, and many who could claim never do.

What DACS does and has done for ten years would be illegal if it were dealing with primary licensing. That is: licenses between the rights holder and a user of the work. It would be collecting fees for work it has no contractual right to sell. But, because DACS deals only with secondary licensing where a third party copies licensed work, because trivial value is involved in each copy, and because it’s ridiculous to expect anyone to contact the rightsholder for permission to make a photocopy or Powerpoint slide, a pragmatic view has overruled the questionable legality and nobody complains. You can opt-out of DACS too, though hardly anyone ever has.

ERRA ECL could conceivably operate similarly, by issuing blanket ECL licenses to publishers that allow them to use whatever they wish from the web, or some part of it. In fact it’s hard to see how else ECL could operate without floundering under an administrative burden.

There is a persuasive argument that ECL of all the amateur material on social networks and photosharing sites would be secondary use. Such images on Facebook or wherever are the primary use. If some third party then wants to copy and use those images somewhere else in exchange for an ECL fee, it doesn’t seem a lot different to photocopying.

All that stands in the way is consultation, the creation of an ECL body to do the job and an SI.

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So who’s going to run ECL?

Unknown. If we believe the IPO, probably nobody for photos. At least for the time being. For now it seems that a single independent collective licensing (not extended) body will be appointed, dealing with orphans only. No ECL, for now.

At the time of the Digital Economy Bill in 2010, the British Library, BBC and 22 other organisations hoped to run their own ECL and orphan licensing schemes. This gamekeeper-and-poacher role was not exactly welcomed by photographers who could see membership might become a non-negotiable term of supply, at fees fixed by the ECL body.

The clear conflicts of interest presented no longer seem to be acceptable to Government.

DACS itself, although it has the expertise, says it would only operate ECL if it was asked to do so by photographers.

Alternatively it could perhaps even be Google, as an extension of their image search. ECL would complement their controversial Google Books project nicely.

It’s unlikely the BL, BBC etc will give up on the idea of running their own in-house ECL’s. They will probably keep chipping away at the Secretary of State. Provided the right agreements about independence and codes of practice can be made and photographer consultation gamed, why not? S117 does not limit who may operate ECL. Everything is open to regulations.

Once ECL is accepted in principle, it is the thin end of a wedge whereby creator’s copyright will become deprecated and irrelevant in practice. Keeping your rights will be at the price of evicting oneself from a growing proportion of the market. In a bear market people get scared and accept reduced terms, and it snowballs. Similar has been happening with fees and rights grab contracts for years. ECL is just another means to get more for less, for publishers.

This is all consistent with the long-running trend toward ever greater inequality between corporates and individuals. ECL applies this inequality to copyright. Like libel, copyright is becoming something that only the rich can realistically keep enforce. It is a trend that badly needs to be reversed. In some other countries, individual copyright is an inalienable civil right, droit d’auteur, that is harder to trample. We asked for that, we did not get it.

Who sets the fees that ECL will charge?

ECL will be obliged to set a normal fair market rate so as not to undermine ‘normal exploitation’. The trouble is that there is no such thing where photographs are concerned. Nobody can assess value by looking at an image without knowing such things as rarity, special skills or access required, the market profile of the author, or the precise requirements of the buyer. A snap off Instagram may look something like a Gursky, but if orphaned, which is which? Unlike potatoes some images may be worth 1p, some £100, some £10,000 or more. Value can change unpredictably too, if a subject suddenly becomes newsworthy.

You’d have to be naive not to expect ECL itself to drive prices down. If the prediction is correct that it will be deployed to make large numbers of amateur images available for purchase, even if ECL sets some nominal market rate increased competition will impact prices. Then ECL prices will fall too, and there is a feedback loop that heads toward zero.

Pricing is something the regulations will likely kick the can down the road for the ECL body to sort out best it can. There does not seem any prospect of anything but wrong and market destruction here.

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Who gets the money from ECL?

If and when non-orphan copyright images are ECL’d, money will be collected and disbursed among eligible members. The question is: who would be an eligible member of a photography ECL? The 85% of UK population who use digital cameras and smartphone cameras? Members of the House of Commons Camera Club? Will the ECL body notify photographers whose work they have licensed so that they can become a member and claim payment? Will it simply be left to photographers to find work that has been licensed and then claim? Or will membership be qualified in some way, and payment shared that includes money that should properly have gone to excluded non-members?

These are open questions.

So how do I find out whether an image of mine has been identified or licensed as an Orphan?

This is hazy at present. There is a requirement that found images must be published on an orphans register for some period, prior to being granted orphan status and licensed as such. This would allow a period for authors to come forward and reclaim their work.

If the image remains unclaimed until after it has been licensed, it will remain in this orphan registry. Should the author come forward they will be able to claim the fee collected by CL and re-assert their copyright. The existing orphan license – which must be non-exclusive – will however remain in force.

It appears that every photographer in the world will be obliged to regularly check the orphan registry to see whether any of their work has been used. If there are a couple of dozen images in the registry that is ridiculous. If there are thousands, it’s insane. Either way it will never happen. Which means orphans will mostly stay orphaned.

Given enough medication all of this might be cleared up in the regulations.

What’s wrong with licensing an Orphan?

Quite a lot, unless you are intent on becoming a pariah state. If the owner is unknown or untraceable, the country that they live in is unknown. Whether the image is subject to exclusive contract with some publisher is unknown. Whether the owner wants it published at all is unknown.

The UK is, so far, bravely alone in proposing the licensing of the world’s copyright work without the owner’s permission. If and when it inadvertently licenses the work of an overseas photographer that means the UK is acting beyond its jurisidiction and illegally in several exciting ways.

For one thing, the license will be invalid outside UK and the purchaser open to damages claim in foreign courts.

For another UK will be breaching international obligations under the Berne Convention, and the TRIPS and WIPO treaties. Trade sanctions may be invoked which could hit UK exports.

The IPO is adamant there is no legal hazard, and say they will wait for the court cases. They may get their bluff called. 73 organisations including Reuters, Getty, Press Association, disagree. High Court action and judicial review look likely once the regulations have clarified targets for the lawyers.

A joint letter from all leading USA photographers organisations has also warned the UK Government that ‘any individuals or businesses making use of foreign works under this bill can expect to be sued promptly by the copyright holders.’ There are also various secondary rights that may lead to legal trouble, notably publicity, property and privacy rights, all of which have expensive significance in countries like the litigious USA.

It isn’t clear whether anyone would dare ever license any work for use with these issues pending, or whether the Government (ie us, taxpayers) will pick up the tab in the event of litigation.

The regulations should be a good time to buy popcorn and watch how this lot hits the fan.

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What happens when someone infringes my ECL’d image?

If and when ECL seizes control of licensing, then logically the ECL body must assume responsibility for pursuing infringements arising from copies they have sanctioned. How could the rights owner know what has been licensed via ECL and what has not? Certainly an orphan owner cannot know, and a non-orphan owner will only know what the ECL body tells him.

Since damages for infringement are related to actual losses, any claim appears limited by ECL fees, which are likely to be low, so unlikely to be viable to pursue.

Once that becomes known, why will anyone bother paying to license any image available via ECL when they can infringe with impunity?

This is now the Secretary of State’s mess, and I bet he doesn’t know the answers.

What if I don’t want my pictures sold via ECL?

The ERRA specifies that there must be a mechanism to enable you to limit or opt out of having your work sold via ECL. This cannot apply to orphans, since by definition the image will be incapable of being traced to a known author.

The nature of the opt-out mechanism awaits the regulations, although it’s possible it will take the form of an opt-out registry attached to the Hub copyright exchange that is under development.

Copyright Hub? What’s the Hub?

The Digital Copyright Exchange (DCE) was a proposal of the Hargreaves review, as a mechanism to make it easier and more efficient for buyers and sellers to locate each other and transact intellectual property. Further work by Richard Hooper refined the concept considerably, and the Hub is now in active development. The Hub is a portal to registries worldwide that will interface buyers with sellers in many different kinds of media, including photographic images via the Plus Registry.

Plus will render orphaning impossible for photographers who choose to register their work, because it stores metadata remote from images where it is secure. It also does a lot more, in combination with the Plus Standards for licensing, it defines a new ecosystem for photographs.

The Hub is a metadata exchange, which may not tell you much. An analogy would be an intelligent automated global telephone exchange compared to a manual plugboard, bits of paper and carrier pigeons. It promises to greatly speed and simplify rights clearance, licensing and sub-licensing that is a rat’s nest of costly complexity for publishers and IP licensors alike. The efficiencies of transaction will be a persuasive reason for publishers to finally stop erasing photographers metadata from their work. In fact they will be unable to. So the Hub and Plus provide some antidote to the ERRA copyright changes.

Is that all then?

No, of course not. Government is meddling with exceptions to copyright too, expanding the scope of Fair Dealing. Various exceptions to copyright are under consideration, including parody and private copying. An expanded teaching exception will arrive later this year. That’s another story for some other time.

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Grokking the ineffable

If you have made it this far, you are as well-informed and confused as can be expected at this point. There are far too many finely-crafted holes in this legislation and it is inexcusable that Parliament would sign such a blank cheque on our account.

Even among photographers who’ve followed and participated in the evolution of this bag of worms there is little consensus about what ERRA will actually mean.

Some of us feel, as I do, that the orphans issue is now a sidetrack, that diligent search will be enough of a PITA for licensing of orphans to be self-limiting. Others, to judge from the blogs, feel that orphans will be a sort of vast new content-scraping goldrush, as enterprises seek to monetise other peoples’ lost property.

I don’t think so. ERRA prohibits the issue of ECL licenses to anyone who sells licenses, and that seems to rule out novel ‘orphan agencies’. But it also frustrates agencies like Corbis and Getty, who are sitting on mountains of historic orphans they cannot license. That is a loss for historians and picture researchers and culture in general, an ERRA fail even in its own terms.

Where there is even less agreement is how ECL will apply to non-orphans. Most are oblivious that it does, and yet it is there in black and white in ERRA s.116(B)1. There is no limitation of scope: ECL applies to ‘copyright works’, not just orphans. Words mean what words say, especially in statutes.

And of course the really crucial question then becomes whether we will see ECL deployed at all within photography. As I have argued above, I see it as inevitable now that the framework to permit it is embedded in law. The economic and practical pressures are simply overwhelming. The barriers preventing it are thin, semantic distinctions between primary and secondary licensing, between professional and amateur. These will continue to fade as web media homogenise them further.

Some regard this as an inevitable adjustment to copyright in an age where control of one’s work is already a lost cause, where infringement is unstoppable; that if it’s going to get taken and used, better to get paid something for it.

Others will be unable to accept that and will be compelled to opt out of ECL in order to retain control. There is a downside to opt-out, especially if you want to safeguard images from metadata mangling and orphanhood. Quite a lot of effort will be necessary to avoid having photos nationalised and handed off so someone else can make money more conveniently. But it will be the only way to retain copyright in the globally accepted meaning of the word.

Taking a wider perspective, there is a disturbing flavour of Soylent Green in the approach to creativity embedded in this legislation. As the CRA says ‘Almost every child now in school will be a “published” or “broadcast” creator before they can vote – thanks to FaceBook and YouTube and NextBigThing™.No-one can know which of these creators will go on to be the professionals who drive the future of the “information economy”. Most do not themselves know. They may place no cash value on their work now: that may change. It is our experience that they most certainly do mind when their work is taken from an online source and used in a way that they disapprove of… In this new environment, changes to copyright law affect every citizen.’

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Some copyright is more equal than others

If and when ECL is deployed, it seems likely to force a clear separation between those who are intent on protecting their work, the (pro’s and enthusiasts) who will opt out and do whatever else they need to, and casual amateurs and snapshotters who will accept ECL by default and disinterest.

It is this crowdfodder whom I see as the target of ECL, an intellectual property equivalent of the Enclosure Acts that drove smallholders from common land in the eighteenth century and gave the land to private landlords to aggregate and manage. Then as now, the rationale was modernisation in the name of economic efficiency. It’s the exploitable pastures of social media imagery that ECL seems destined to leverage, each image of negligible value to its owner. A sort of involuntary microstock, that can fulfil the image needs of anyone prepared to stump up an annual fee for the privilege of legally helping themselves to easy pickings.

If that is correct, the ERRA will have pulled a filthy trick of mass dispossession.

Because they can

The IPO no doubt sincerely believes it has created good law that balances interests properly. There is nothing as clever as fiendish political engineering here, just venality. ERRA is not a conspiracy to kill photography, it’s a designed-by-committee kludge to give the loudest lobbyists what they want. It pays no heed to sustainability for photographers. At least fish get quotas.

The market truly believes now that buyers will always be awash with photographs that are good enough. There is simply no need to respect creators’ rights, we’ll carry on producing no matter what. And it’s probably true, excepting the pro’s who have been culled by starvation.

ECL is a logical next step from the rights-grab contracts that have become ubiquitous, to get the Government to strip our rights to make commerce’s admin easier snd cheaper. And you can see the bean-counter calculation, that a few ECL quid in return is surely encouragement of creativity.

The IPO is reportedly astounded by the ungrateful fury of photographers since ERRA passed. There is impenetrable mis-comprehension of what makes creative people tick. Creators, unlike civil servants and publishing CEO’s, will choose to starve in garrets if they have to in order to be able to work creatively. Starving in a garret because government and business think it’s a good way to support the success of corporations is a very different proposition. Just because creativity is vocational doesn’t make us soft in the head.

Still, that is pretty much how politics and business now regards citizens in general. That is not playing out too happily either.

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More is less, and less is less

In any rational world, when more photos are commercially published than at any time in history, pro’s ought to be flourishing. Instead they are finding you can’t feed a family let alone sustain a career on ‘likes’ and the occasional fifty quid. Infringement is now a normalised business practice and everyone is at it. EPUK’s daily grind is self-defence against this epidemic of theft, so we know. Quite a few MP’s have been caught nicking images for PR use, which might explain a lot.

This new copyright is likely to be with us for many years. What it enables is going to be iteratively developed by successive regulations. Looking at how media have evolved and where it’s headed are the best clues we have to estimate how this law may be interpreted.

The trend of the past decade and a half has been a race to the bottom for media in general. (Actually it started in the 1970’s, long before the internet, but that’s a half-hour argument for elsewhere). Less and less professional quality content gets funded, and there is a spiral of decline as mainstream media churn more to spend less. It hopes to make more and more profit by investing less and less. And it serves consumers who see dwindling reason to pay for much.

The trouble is that the developing media model of the web is founded on the parasitic contradictions of free culture. These are well summarised by Brad Holland, an illustrator resisting parallel attacks on copyright in the USA. ‘ We think the answer is pretty obvious as to why so many in the free culture movement insist on wanting to take rights away from artists and creators. Simply put, “permissionless innovation” is nothing more than theft for profit, without consent or compensation… It appears many of these so called new business models are so deeply flawed as to be incapable of functioning with only willing participants. In other words, they can only function with unwilling participants, who have not granted consent and who are not being compensated.’

That, in a nutshell, is what the ERRA copyright changes will be used to facilitate if at all possible. Only a fool, or a vast huddle of career academics, new media gurus and compliant civil service policy wonks, could imagine this is sustainable or that growth and innovation mean dreaming up new ways to rip people off.

The ERRA does make me wonder whether UK Government has in fact mistakenly nurtured what will soon become a GDP-free nation of parasitic junk-news websites, axe-grinders, virtual boot-sale traders and hobby bloggers who’ll leap at cheap ECL pics because they’re getting sick of Getty letters.

By reducing creators rights rather than strengthening them, Hargreave’s intent of ‘supporting innovation and promoting economic growth in the digital age’ has acquired a disturbing flavour of Soylent Green. As the CRA says ‘Almost every child now in school will be a “published” or “broadcast” creator before they can vote – thanks to FaceBook and YouTube and NextBigThing™.No-one can know which of these creators will go on to be the professionals who drive the future of the “information economy”. Most do not themselves know. They may place no cash value on their work now: that may change. It is our experience that they most certainly do mind when their work is taken from an online source and used in a way that they disapprove of… In this new environment, changes to copyright law affect every citizen.’

This cannibalistic approach will foster monetisation and revenue that benefits the middle-men aggregators and publishers whose lobbyists have convinced HMG this is the yellow brick road. It will not nurture the creativity of individuals beyond the banal level that free-at-the-point-of-consumption requires. Basically, you get what you pay for and if reward for excellence is unavailable, who will produce excellence? How will creators dedicate their lives to achievement when stuck in day jobs? What are the implications for media and information quality, so essential for democracy? What kind of culture will this become?

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These questions have not been considered at all. Modern governments suffer from neoliberal certainties that markets are pure expressions of what people want and that money is the measure of all.

You have to go back a long way to find a greater wisdom than contemporary bean-counting. To Thomas Macauley’s 1841 speech to parliament that preceded the the 1842 Copyright Act. This should be taught in schools alongside Shakespeare and Newton. Only the language is archaic. Macauley said everything worth saying about copyright.

For Macauley, balance of interests was about principle and morality and the public good. Economic factors were means to achieve this, not ends in themselves.

Macauley: “The advantages arising from a system of copyright are obvious. It is desirable that we should have a supply of good books: we cannot have such a supply unless men of letters are liberally remunerated; and the least objectionable way of remunerating them is by means of copyright. You cannot depend for literary instruction and amusement on the leisure of men occupied in the pursuits of active life… It is then on men whose profession is literature, and whose private means are not ample, that you must rely for a supply of valuable books. Such men must be remunerated for their literary labour. And there are only two ways in which they can be remunerated. One of those ways is patronage; the other is copyright.”

Of course things have moved on, and a lot of people are now wealthy enough to create and give work away. But there is still a gulf between what can be done for free in spare time and what cannot. And do we really want creativity to be limited to those wealthy enough to indulge themselves? Globally, they are a technocratic elite. Are those the only voices that should be heard? Macauley saw copyright as a means to ensure inclusive financial support of creative achievement regardless of privilege. Not because he wanted to be nice to creators but because it was healthy for society’s dialogue with itself, and in satisfying that need good for business. That is pretty much the opposite to today’s work-for-free more-for-less cynicism, that really only cares about short term advantage and shareholders.

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In 1841 Macauley argued against extending the term of copyright, that it would only benefit the merchant class of publishers and booksellers. He perfectly understood that the social contract was between authors and the public, and that middlemen would always try to take control to their own advantage, to pay authors too little to support creativity, and to charge the public too much from a position of monopoly. He predicted that allowing this would destroy the consensus that copyright relies upon.

“At present the holder of copyright has the public feeling on his side. Those who invade copyright are regarded as knaves who take the bread out of the mouths of deserving men. Everybody is well pleased to see them restrained by the law, and compelled to refund their ill-gotten gains. No tradesmen of good repute will have anything to do with such disgraceful transactions. Pass this law: and that feeling is at an end. Men very different from the present race of piratical booksellers will soon infringe this intolerable monopoly. Great masses of capital will be constantly employed in the violation of the law. Every art will be employed to evade legal pursuit; and the whole nation will be in the plot.”

And that brings us up to date in 2013.

You may say ‘we can’t go back to 1842, it was a different world’. So it was, but the point is that I70 years ago Macauley understood copyright far better than we do now. He knew it as a productive social bargain that absolutely relies on equitable relationships for acceptance. It is not possible to fix what is broken without understanding what it is supposed to achieve, which is to generate and sustain education, enjoyment, enlightenment and culture.

Getting all that right will produce lots of money too. But copyright’s primary purpose is not a money printing machine for people whose primary interest is money. Which is just about everybody Hargreaves listened to, aside from the idealists who think photographs and all the rest of creative endeavour just grows on trees and costs nothing.

So how ERRA will help the UK’s creative industries toward excellence, innovation and greater economic success, as advertised on the basis of no evidence whatsoever by Prof. Hargreaves, remains a mystery. Perhaps the Secretary of State will tell us in due course, along with so much else.

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Welcome to the layer cake, son

A final thought, however. ERRA’s copyright changes are only part of the story. There is a parallel and far more creative attempt to deal with the unmanageable logistical turmoil of internet copyright negotiation. The Hub and Plus Registry are a realisation of ‘the answer to the machine is in the machine’, and it is only when that development is also considered that it becomes possible to guess how these changes to copyright will pan out for photographers.

It seems that the UK is eventually headed for a 3-tier copyright system, where photographers will define for themselves where they choose to be.

Tier 1 will be opted out of ECL, and registering their images with Plus Registry. They or their agents will control usage terms and price. Their metadata will be secure. Their work will be immune to orphaning. They will pursue infringements. They will keep control of copyright, but will be obliged to work hard to do so. Most professionals face a future of unprecedented uncertainty because so much is set to change. Many may simply decide that the increasing burden of unproductive effort is no longer worth the shrinking reward and give up. Indeed many accomplished photographers already have. Others will find ways to benefit from the Hub and survive.

Tier 2 will accept ECL, will become members and be pleased to get occasional payments as compensation for being robbed of control of copyright and moral rights. They won’t want to do the work of entering and maintaining metadata necessary to be in Tier 1, so their work will continue to be orphaned. They won’t care enough about infringements to pursue them, which is just as well because ECL participation seems likely to undermine that option in practice although not in law.

Tier 3 will be couldn’t-care-less. Their photos may be licensed via ECL, but even if they know what ECL is they will not bother to claim, or may be ineligible to do so. Any money earned will go to Tier 2 as a result, which Tier 2 will like. They won’t bother about being orphaned, nor infringements either although in law they’ll still have the right. This will be the largest and most obliviously exploited group.

In this imagined future the IPO will continue to claim, as it does, that none of this ‘removes copyright from photos’. It’s just that what copyright means will be very different for the photographers in each tier. And when the IPO says these changes ‘aim to make copyright licensing more efficient’ you’ll know that they mean ‘more efficient for exploiters.’ And that ERRA marks the corrupted end of an age of creative innocence and sharing freely, for photographers on the web.

It’s all going to be about money for UK Plc. from now on. And watermarks, lots of ugly watermarks.

ERRA: You could not make it up © Tony Sleep 2013.

Download a PDF of this article.

Link to EPUK moderator Tony Sleep’s brief analysis ERRA: You could not make it up (short version).

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A following article will explore how the Hub and Plus Registry are progressing, and what they may mean for photographers.

A previous EPUK article about Plus may be found here.

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