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