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Mandelson's Digital Economy Bill: A Future Fair For Photographers?

25 February 2010 - EPUK

As Business Secretary Lord Mandelson’s Digital Economy Bill moves to the report stage, and the COPYRIGHT ACTION web site gets 60,000 page views from anxious photographers, EPUK reveals how the bill’s clause on orphan works spells an uncertain future for photographers and publishers alike.

Clause 42 of Lord Mandelson’s Digital Economy Bill, concerning the licensing of orphan works, has raised so much concern among professional photographers that a draft letter to MPs posted on the COPYRIGHT ACTION web site received 60,000 page views in a fortnight.

As EPUK asks what are the dangers to photographers from orphan works legislation, it becomes apparent that hazards lie ahead for publishers as well.

EPUK believes that …

Moral rights need to be implemented in full and made enforceable so that users of images are compelled to identify the creator as per European Library guidelines, helping to prevent creation of new orphan works as is the case in Germany.

• Although current law prohibits removal of identifying metadata it requires proof of intent to infringe. As human error, lack of care and software deficiencies routinely strip metadata proof is rarely possible, rendering the law unenforceable.

• A licensor of an orphan work will not know if minors depicted are wards of court or or otherwise protected. Model releases and exclusivity agreements will be ignored, creating liability for both the photographer and the licensing authority. Private or personal images at present protected may be licensed as orphans.

• Third party licensing will damage market value by setting a fee that does not take account of skill, cost of creation, exclusivity or value of a photographer’s reputation.

• The numerous provisions for statutory instruments are a carte blanche for future Ministers to change the rules significantly without proper consultation or Parliamentary debate.

Unclaimed royalties will be treated as bona vacantia, diverting the creators’ income to the state.

• European Library guidelines that a non-responsive author does not make an orphan work have been ignored.

• European Library guidelines for a reasonable search are reduced to a small subset with no proposal for effective search protocols.

• The removal of exclusivity, the removal of moral right to objection and the UK licensing of work owned by aliens breaks our international obligations under the Berne Convention and TRIPS.

So where does EPUK stand with respect to the Digital Economy Bill?

EPUK’s position on the Digital Economy Bill

We cannot accept blanket commercial licensing of orphan works. It sets up a free-input commercial supply channel that directly competes with and undermines our business.

We can accept some form of licensing or fair dealing exception that is limited to non-profit use within the non-commercial cultural sector. Precise drafting will be required to prevent use in competition with the commercial exploitation of the work.

We regard enforceable moral rights as a necessary and rational counter to any weakening of copyright holders’ exclusive rights.

We need an informal, low cost, quick, online method of enforcing rights and obtaining compensation for breaches. To deter infringement it is essential that the penalty for a breach is significantly greater than the lawful cost would have been, even if not all of the money charged to an infringer gets paid to the rights owner.

Download pdf: Digital Economy Bill pitfalls
Download pdf: EPUK Digital Economy Bill position statement

Link to the EPUK sister site: COPYRIGHT ACTION

EPUK February 25, 2010

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Sincere thanks for producing this, many of my colleagues are keen to do what they can to influence the law makers but have been confused or unsure who to contact, what to say.

This is exactly the guidance they have been looking for.

Good work and timely too.

Comment 1: Martin Brent, 25 February 2010, 03:52 pm

This is a very worrying development for all artists, not just photographers – I previously contacted my MP to express my concerns about the Bill on the grounds that it would be extremely damaging to schools, Universities, libraries, and other businesses that provide public Internet access. However, if anything the harsher orphaned works provisions and draconian third party licensing rules are even more frightening. Unfortunately my MP returned a stock reply to my last communique apparently authored by Conservative Party HQ, indicating that they’re cautiously supporting the Bill. More ordinary people need to get in touch and show Parliament how the Bill will impact on their livelihoods.

Comment 2: Simon Regan, 26 February 2010, 07:35 pm

Great article, perfectly concise so I can get to the info I need quickly. Thanks.

Comment 3: Chris Ridley, 2 March 2010, 01:11 pm

What with the influx of Microstock websites, photographers giving away their images for free to get credit lines, and now orphan works, it really puts the art of photography in real danger of being devalued to a level that may never recover.

Maybe the days of film were not so bad after all!

Comment 4: Andrew Newey, 3 May 2010, 09:42 pm

your_ip_is_blacklisted_by sbl.spamhaus.org

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