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ERRA: You could not make it up (short version)

22 May 2013 - Tony Sleep

If someone parks a tank on your lawn, you probably need to consider whether they’ve just come to help with the gardening or not. Tony Sleep examines the copyright provisions of the Enterprise and Regulatory Reform Bill 2013 which became law last month.

Buried within the Enterprise and Regulatory Reform Act which became law on 24th April are two changes to copyright law. One sets out a mechanism for licensing photos whose owners cannot be contacted – so-called Orphan Works (OW). The other introduces Extended Collective Licensing (ECL).

It’s an extinction event. Or not.

Bloggers reacted as if there was an incoming asteroid made of orphan works. Or not, depending on who you believed. The result was a lot of heat between photographers who rushed one way or the other with little illumination.

The regulations that will give the changes definite shape and form will only arrive later this year. As the pop-up debate petered out the Intellectual Property Office (IPO) moved to counter ‘myths’ by adding mud, and promised consultation would sort things out. And, having missed the elephant in the room – ECL – the internet’s goldfish mind promptly wandered off to the next scrum.

Hiding in plain view, some facts

Whatever happens from now on, government has awarded itself a legal power to overrule creators’ copyright. And not just of Orphan Works but of all copyright creative works, whether published or not. What it may do with that power, if anything, is a decision for the Secretary of State. This new law is designed so it can be substantially changed by regulations at any time, avoiding parliamentary debate.

Copyright has been changed in a fundamental way. Most outside the IPO dispute that this is still copyright at all. Article 9 of the Berne Convention for the Protection of Literary and Artistic works requires that the right to control reproduction shall be exclusive to the copyright holder, and that nothing shall be done to undermine the normal exploitation of the work nor prejudice the legitimate interests of the owner.

You can make a case, and the IPO does, that this is alarmist nonsense. No regulation yet exists to deploy this power.

But if government had just passed a law that allowed the Secretary of State a right to hire out our camera, or house or trousers, without asking, would that be OK? Would we be reassured that consultation should ensure this will be fair? Or to learn that we’d be able to claim some of the money? Or to be told that if we really want to keep them we can opt-out? Or to learn that the rules may be quietly changed at any time?

No government would dare do such a thing. But be warned: your photos will only remain exclusively yours until some enterprise persuades the Secretary of State that ECL is too good a wheeze to leave on the shelf.

This applies to everyone who uses a camera or cameraphone and puts photos online. Which will soon be everyone.

We have just lost the certainty of an exclusive right to say who may do what with our photographs. So pay close attention to what government may choose to do with the photos-formerly-known-as-ours in the years to come.

‘Adapt or die’ again? Maybe both

This is not ‘just dinosaur pro’s whingeing again’. Developments elsewhere – the Hub and Plus Registry – will give professional photographers the means to armour themselves against this law. Pro’s have to stay in control, and will do the necessary work.

However the vast majority of people will not know how. And even if they do, it will be alien to their use of photography for fun and pleasure, and too much trouble. Most will be unaware they can opt out, or that others are getting paid the money their work has earned. That is how opt-out ECL works.

Copyright FAQ’s

I thought this was about orphans. Why do you say ‘all copyright works’?

Half the new law makes it possible to license Orphan Works. The other half makes ECL possible – to license copyright works without the owner’s knowledge or consent, even when the owner can be easily found. If and when regulations introduce ECL for photographs, there will be limits to which photos, at what price, by whom, for what purposes. Aside from knowing that commercial use will be permitted those limits have not yet been set. Whatever is decided may change repeatedly in the future, and the future is a long time.

So orphans aren’t the problem?

Probably not, for now. The diligent search procedure to qualify an image as an Orphan Work looks like being time consuming, onerous, and unreliable. The Act prohibits licensing of orphans to anyone who might sublicense. That prohibits agencies from harvesting orphans to exploit.

So what’s the problem?

Extended Collective Licensing (ECL). Imagine one or more photo agencies empowered not only to license their members’ work, but anyone’s copyright photos that a buyer wants to use. Even though the image has an identifiable and contactable owner, at no stage does the owner get asked, or told his or her photo has been sold, nor what for.

The money is paid into a collective fund, which is shared between members. The non-member owner should be able to join and claim a payment, but, of course, may never know their photo has been used nor that the ECL scheme exists. They will be able to opt out of having their work sold by the ECL body, but again, they’d have to know of its existence first.

That sounds illegal. Surely they can’t do that?

It was illegal until 24th April when government changed the law so that it can do it if, when and however the Secretary of State authorises it. This arguably breaks UK international commitments.

I have photos on the web marked ‘© 2013 John Doe. All rights reserved’. Isn’t that enough?

Government just changed the law so that it may override your copyright even though everyone else still has to respect it. Right now, prominent visible watermarking is the only effective insurance against future changes to the law, and that is far from foolproof.

The IPO has given lots of assurances, so what is the problem?

The assurances mostly answer points that misrepresent or fail to answer the real concerns. One is just plain wrong (there is an ECL for photography, DACS, and has been for 10 years). This does not inspire confidence, nor does the history of discussion with this agency. But regardless of what the IPO says now, the legislation can be readily morphed by this or future governments. This must be viewed as a long term threat.

Why have these changes come about?
There is history going back 8 years. At the outset it was just museums and cultural organisations asking to be allowed to use orphaned work. Latterly the demand has snowballed to include multinational publishers and aggregators who have pushed to weaken creators’ rights in order to make using photos simpler and cheaper. There is also the free culture lobby which has its own ideological stake in weaker copyright.

There will be ‘opt out’. Surely that makes all of this safe?

Only if you know there is an opt-out and how to exercise it. It could become quite difficult to keep track of multiple ECL schemes that need to be opted out from.

If someone wants to use my photos and I get some money, what’s not to like?

You might not approve of how your photographs are used. Your family, or your clients, may object and blame you. You may not like the price. You may never get to know they have been used, and that others have been paid your share. And you may not like the consequences for photography, media and culture.

Who might want to use my photos anyway?

Government set out to increase economic opportunity, innovation and growth within the ‘creative industries’. If we look at who was listened to and what they want, it’s possible to map the probable future as the new law is interpreted to suit their wishes.

The last 15 years has been about the commoditisation of photography. Vast aggregated piles of photographs are in corporate hands, but nobody could legally use them whilst creators rights stood in the way. In a now-familiar pattern of public subsidy for private profit, the ERRA sets the scene for corporate monetisation without consent.

Since copyright is already broken, is this not a sensible way to fix it?

Law relies on consensus for effect: only a minority bashes people over the head and takes their wallet because people don’t want to live like that. Copyright won’t be fixed by legitimising and exploiting its failings instead of fixing it in ways that all can understand and accept. Absurdly, none of three government inquiries even considered that.

The monster under our beds

These brief questions and answers don’t get us far. We could spend the next few years with a shapeless greedy monster hiding under our beds which seems harmless and asleep. So it’s tempting to ignore it as an imaginary threat. Nevertheless this creature is real and hungry, and powerful forces are animating it. Rest assured this new copyright is being actively investigated for profit opportunity in the privacy of corporate offices.

One day we may well wake up to discover we have been eaten. We urgently need a wide public debate about the implications of this new copyright because it threatens everybody who creates on the web.

Now, ask yourself this simple question: Do you want the web to become a territory where corporations alone have control of copyright?

Read EPUK moderator Tony Sleep’s longer article ERRA: You could not make it up. Or download a PDF.

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I remember a class action by photographers who downed their tools ( cameras) in protest at a party conference or something similar. I think we need something like this to raise this debate from a sub professional debate to a national one, and soon.

Comment 1: louis , 29 May 2013, 12:58 pm

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